Wednesday, April 30, 2008

A Broken Record

How do we begin to measure the pain so many of us have felt at being told that we had a lesser right to be Malaysian than others.


I do not like any form of discrimination, I think it's very wrong.

As a secondary school student in the mid-80s, no matter how I tried, I could not get my mind around the fact that it was unjust, unfair and ruthless to hand out scholarships hand over fist to under-achieving Malay students purely on the basis that they were Malay when many well-deserving, very needful non-Malay students were being by-passed.

I could understand giving help to those who were less privileged and for whom, without a helping hand, the future was an inescapable cycle of despair. And I recognised that history had left some of us more vulnerable than others. But to inflict the pain of hopelessness on those as deserving, or even more so, purely on the basis of race was cruel and wrong.

I was lucky enough to be awarded an ASEAN Scholarship by the Singapore Public Services Commission in 1986. It got me a place in an extremely good school in Singapore where I did my ‘A’ levels. This was an experience that showed me not only how little I really knew about anything but also the fact that for so many of us opportunities for advancement and the kind of life that we deserved were not to be found in Malaysia. Many of my fellow scholars were leaving on what seemed to be for most a one way trip, a perception that time soon made a reality. Most of them are now all over the world, some carrying Singaporean passports, others having no vision of returning to this country.

In many ways this has not changed. I recently addressed a group of about 150 bright Malaysian students studying in top universities in the United States and I could see that uppermost in many of their minds was whether it was in their best interests to return home.

For, after all, what is it that they would be coming back to? A landscape shaped by ‘ketuanan Melayu’ in which it has become a rule of society that we must believe, and enthusiastically at that, the propaganda that would have some believe (I am not sure who) that the Government does really appreciate that all of us have our rightful, and equal, place under the sun?

I read law at the International Islamic University, commencing my term in 1989. I was called a ‘keling’ for the first time during my time there. I was also told that I shouldn’t be so sensitive to being called a ‘keling for the first time during the same period. Somehow, being told not to be sensitive just didn’t do it for me, didn’t make me feel any better.

Along the way, I have confronted my share of racism, both personally and in the course of my work as an activist and a lawyer. Exposure to it has not made it easier to bear; the increasingly bizarre justifications are just as hollow. And through it all, I have been haunted by UMNO’s obsessions with ‘ketuanan Melayu’.


The Prime Minister’s advisors don’t see to understand that ‘ketuanan’ by any definition means just that: supremacy. When put next to the word ‘Melayu’, it means the supremacy of the Malays.

Any notion of ethnic supremacy in a multi-racial country in which all are guaranteed equality as a fundamental liberty is misplaced. When articulated to defend preferential treatment, it is discrimination. When pushed to a point where other ethnicities are suppressed in favour of those who consider themselves supremacists by virtue of their own ethnicity, it is racism. A championing of ‘ketuanan Melayu’ and all that it connotes in this society is a championing of a racist cause.

The defence of ‘ketuanan melayu’ by the Prime Minister as being reflective of the need for Malays to excel is incomprehensible. ‘The Star’ (‘Pak Lah explains meaning of ‘ketuanan Melayu’’, 29.04.2008) paraphrased the Prime Minister’s explanation this way:

He said Malay supremacy meant that the Malays, as the indigenous people in Malaysia, needed to strengthen themselves to ensure they were successful and developed.”

It went on to quote the Prime Minister as follows:

If they are not successful and developed, then they are not tuan (masters), therefore they will be coolies. I am sure we do not want to become coolies who do not play any role in development because we are weak and not able.

“So when we talk about that (Malay supremacy), we mean we must be successful in many fields. It is never about ruling over others, or forcing our power upon them,” he told reporters after chairing the Umno supreme council meeting last night.

The logic, or lack thereof, underlying this explanation is of the same ilk as that which was advanced to justify the now notorious unsheathing of the keris. The explanations turn on an assumption that Malaysians will believe that all that was said and done should be accepted as it was merely intended to serve the Malay agenda in one way or the other.

I do not think so.

The almost infantile structuring of the explanations is an insult to all Malaysians. There is no place nor is there a need for a separate and distinct Malay agenda. The Malays are the majority and not the minority. By their numbers, they cannot be victimized. A large amount of the total wealth of the population is in Malay hands. They do not need to be told that they are supreme in order for them to excel. The Nazir Razaks and other extremely capable Malays of this nation are testaments to this fact. They would not agree that they need ketuanan melayu not to be coolies.

It does not appear to have struck UMNO that saying that UMNO is playing to the Malay agenda is not a good thing, not even after the treatment the Barisan Nasional (and therefore UMNO) received on March 8th. ‘The Sun’ (‘Shahri defends UMNO’s ‘Ketuanan Melayu’, 30.04.2008) paraphrases Shahrir Samad in this way:

He said Ketuanan Melayu is something that exists under the constitution. What Umno is doing – in shouting for Ketuanan Melayu – is just defending the concept of Malay special rights as enshrined in the constitution that is.

I have great difficulty in swallowing this - hook, line or sinker.

The Constitution does not provide for the supremacy of any ethnic community. Conversely, it guarantees equality even as it provides for a means of protecting the Malays and the natives of Sabah and Sarawak. To assert that the Constitution provides for ‘ketuanan Melayu’ would necessarily mean that the Constitution similarly provides for ‘ketuanan Orang Asli’. Is UMNO saying this? I don’t think so.

I resent revisionist thinking aimed at substantiating a political position. I resent it even more when it involves perverting and misrepresenting the Constitution. But then, I shouldn’t be surprised. It would seem that very little is sacred in this country any more.

The word ‘ketuanan’ or ‘supremacist’ should not be in the lexicon of Malaysia in this day and age. If at all, it should only be used to describe our Constitution or the significance of the rakyat.

And nothing that UMNO can say about it will change that. Birthrights can never be denied.


Saturday, April 19, 2008

The Politics Of Compromise

Any reform of an institution or an institutional nature will require political will. As we have learnt, the Barisan Nasional federal government is impervious to public opinion. Were it otherwise, we would not have heard the kind of rhetoric we did these past few years and that we continue to hear. Like all bullies, the Barisan responds to aggression and power. Until March 8th, when Malaysians coalesced into the phalanx that drove the Barisan out of five states and denied it the traditional two-thirds majority it had become accustomed to, there was no power that could match that of the Barisan. Safe in its control of key institutions and agencies, it had sat back and thumbed its nose at everyone else.

The slap it received on March 8th made the Barisan reel. But even as it took one, maybe two, steps back, it quickly steadied itself and clung to whatever it could, notably government. And despite seeming efforts to bridge the gap between it and Malaysians through the trumpeting of the need for reforms, the Barisan has thus far governed pretty much as it had prior to March 8th. We have in the short time since the elections heard about threats to racial harmony, seen the race and religious card played, heard the usual excuses over non-performance and, as expected, heard of how the opposition is the cause of all ills in the nation. Business, as such, is pretty much as usual, perhaps more so for the fact that the internal power struggle in UMNO is eclipsing all else on the list of priorities. Governance, it would seem, has once again fallen second to politics.

In this climate, it is apparent that Malaysians can only reasonably expect to see reforms where these reforms intersect with the political agenda of key players within UMNO. For all purposes and intents, more so than before in light of their dismal performance at the polls, the MCA and the MIC are largely irrelevant.

This setting makes me wonder how to perceive these wonderful promises of judicial reform. I know Zaid Ibrahim and I think he is doing a good job at trying to push for reforms. His efforts strike me as being sincere and aimed more at nation building than politics. If he were the only factor in the mix, I would be heartened and would view the situation optimistically.

However, Zaid is not the only factor nor he is the only player. Neither is the Prime Minister, assuming that he is solidly behind the push for reform. There are those on the cabinet who, in many ways, represent the old guard and for that reason alone may choose to oppose any measure involving acknowledgments of wrongdoing, tacit or otherwise. I note the Deputy Prime Minister’s emphatic rejection of the suggestion that the gesture made by the Government to those judges who were victimized in 1988, was not, repeat, not an apology. This refutation is manifestly inconsistent with Prime Minister’s declaration of a need to make amends. This and the presence on the cabinet of other senior UMNO members who may be nervous about crossing Tun Mahathir, who in these politically treacherous times is now openly acknowledged as being the principal cause of the downfall of the Judiciary, hints worryingly at the possibility that the reform proposals may not gain traction.

The ex-gratia payment and the speech delivered by the Prime Minister fell short of the full vindication that the affected judges, so well versed in the parceling of fault, are deserving off. The payment and speech go someway to beginning a necessary process of truth and reconciliation not only the victims of 1988 but for the Judiciary and the nation. We must credit Zaid and the Prime Minister for that.

Having said that, it must be recognized however that no matter how we characterize the gesture, it in itself does not go far in reforming the Judiciary. Zaid had declared that there were three key aspects to the reform package he was offering Malaysia; the apology, the establishment of a judicial appointments commission and reinstating Article 121(1) of the Federal Constitution to ensure the separation of powers. Of the three, as thing stand, only the first has to an extent become a reality.

The Prime Minister’s declaration that the government proposes the establishment of a judicial appointments commission does not quite hit the mark where the second is concerned, in part because it is for the government to take steps and not to propose. His explanation that this will involve some time as the process has to be worked out is not reassuring in light of the split in ranks within the cabinet. The Prime Minister had in 2005 similarly reassured Malaysians that the IPCMC would be established. We have yet to see it, largely due to resistance from within. The establishment of the National Human Rights Commission (SUHAKAM) took some seven years. If that is what is meant when the Prime Minister says that the process will take time, I am not inspired. I do not know whether Malaysia can take another seven years of the Judiciary in its current state.

The avoidance of any discussion of Article 121(1) in the speech is similarly worrying. The reinstatement of the article as it was prior to 1988 is a crucial step in re-entrenching the separation of powers and re-establishing the judiciary as a bulwark against totalitarian arbitrariness. The Barisan government has time and time again shown us why Malaysians cannot afford to lose the right to seek judicial review. We are largely where we are because the courts felt themselves unable to intervene or, if permitted, were unwilling. The absence of any reference to this key aspect of the discussion further undermines my belief that the Government will actually take concrete steps forward.

Seen from this perspective, it is glaringly evident that the nation is currently caught up in a huge public relations exercise that the Barisan has hinged on the promise of judicial reforms. The public relation campaign does not necessarily of itself lead to the implementation of reforms.

It is for this reason that civil society must keep on pressuring the Government to act and to act decisively. The Pakatan Rakyat should consider tabling a private members bill for the establishment of an adequately empowered judicial appointments commission. All possible avenues to create awareness and force accountability must be explored. The battle has not been won, it has just begun.

Which is why I find the overwhelmingly supportive reaction of the Malaysian Bar somewhat surprising. The Bar has always been at the vanguard of rule of law issues. It has been steadfast in its condemnation of the events of 1988 and the subsequent decline in the quality and integrity of the Judiciary. Nothing less than a full apology and a reinstatement of all benefits of the judges who were wrongly attacked should have warranted the standing ovation given to the Prime Minister. But there was a standing ovation, and that at a dinner hosted by the Bar but paid for by the Government, something I never thought I would see in my lifetime as a lawyer.

The Bar needs to be wary of accommodating, or being perceived as accommodating, the politics of the Executive. It is however veering dangerously close to doing just that and compromising itself in a manner that will rob it of its credibility.

When, and if, the proposal for a judicial appointments commission comes to fruition, the Bar will be the primary voice of civil society to ensure that the commission is established as it should be. In all likelihood, the appointments mechanism will not satisfy the criteria of an independent appointments commission. At that point in time, the Bar must ensure that it is in a position to live up to its responsibilities. Positions it takes now will limit its freedom to react appropriately. Regrettably, the extent of support shown to the Government, from the hosting of the dinner to the adulatory speeches, may have already had their impact.

Commending the Prime Minister for the step taken was the proper thing to do, but to offer, as the media reports suggest, congratulations for the loosening up of controls over the freedom of expression, is to ignore the very real and very painful suppression of the numerous demonstrations of 2007 by force. The shots fired in Pantai Batu Burok still ring out, as do the cries of peaceful marchers and demonstrators as they were tear gassed and attacked with water cannons. The Prime Minister was responsible for all that and more.

I appreciate that activism will require tactical concessions. I also understand that it is better to seize what gains one can when one can rather than not making any progress at all. However, gains should not be taken at the risk of principle. The rule of law cannot be built on compromise.


Thursday, April 17, 2008

Makkal Ossai: Reform? What Reform?

It seems that it is business as usual for the Barisan federal government and the insincerity underlying the promises of reform becoming more evident.

The Home Affairs Ministry has refused to extend the permit of Makkal Ossai (‘Daily threatened racial harmony: Syed Hamid’, Malaysiakini, 17.04.2008). In the usual double speak that we have become so familiar with, we are told by the Minister, Syed Hamid Albar, that there is no question of the permit having been cancelled, it is merely not being extended.

Tell that to the employees of the newspaper who have suddenly found themselves facing unemployment. Explain to them how they are supposed to meet their financial commitments be they mortgages, car repayments or just food on the table. Glib sophistry is not going to be consoling them.

But, oh wait, that is the point, isn’t it? Force the editors through concern for their colleagues into becoming more Barisan friendly or at the least, Pakatan unfriendly. The nuances of the promise of an ‘appeal’ by the Minister resonate loud and clear.

In legal speak, we refer to such pressure as duress. But then, what else can one expect from a Ministry that is equally responsible for the implementation of the Internal Security Act.

The Minister says that the newspaper threatened racial harmony. He does not say how nor does he specify when. He appears to have adopted a very broad-brushed approach, one that could have equally resulted in the conclusion that the New Straits Times or the Berita Harian or the Utusan Malaysia or any other major daily had similarly threatened racial harmony at some point or other. The Minister after all does not specify that the threats arose from editorial pieces or from news reports or, if so, from style as opposed to content. He should recollect that, if one wants to stretch a point, we have been exposed by major dailies to content that could arguably be said to be racist or supremacist or divisive from time to time. The recent speech of Tengku Faris of Kelantan that raised many an eyebrow was dutifully reported by the major dailies as were the incredible speeches at the last two UMNO general assemblies.

Makkal Sakti does not deserve to be singled out. We have heard of no specific incident recently that created controversy, that shook the nation to its very core. The refusal of the renewal smacks of arbitrariness and has made victimis those who work for the newspaper.

Views are views. I think that is why it is called press freedom. And as for racial harmony, Malaysians are more mature than the government gives them credit for. That is why they voted the way they did. But perhaps, the seemingly continuing inability of the government to see that is the real problem.

The government says that it is pushing for reforms, that it made the mistake of overlooking the significance of alternative media. I find this hard to believe in the face of this kind of indifferent, callous, self-serving sort of conduct. If the government was sincere, Makkal Ossai would continue operating, its staff would not be facing the prospect of joblessness and we would not be having this discussion.

For any of you doubting the wisdom of having voted against the Barisan this last general election, keep in mind that with behaviour like this, there really is no other choice.


Wednesday, April 16, 2008

Whatever Happened To Francis Udayappan?

Enough excuses. The Prime Minister has admitted to not having done enough to put in place the reforms he had promised. Admitting the failure is one thing, doing something about it is another.

April 16th is the anniversary of the astounding disapperance and death of Francis Udayappan. On this day in 2004, he had supposedly fled from police custody. It took a month to locate the body when it was fished out of the Klang river without its head, the identity of the body being confirmed by an inquest about two years later. This inquest returned an open verdict - insufficient evidence to establish cause of death - but ruled out foul play, something Francis' family has insisted took place. A High Court challenge was filed but to date remains unheard.

If the Prime Minister is serious about wanting to make Malaysians believe that his government cares, then an Independent Police Complaints and Misconduct Commission (IPCMC) must be established as a priority. The IPCMC must be the kind of independent and empowered body the 'Royal Commission to Enhance the Operation and Management of the Royal Malaysia Police' recommended to the Prime Minister in 2005. This was after the Commission had heard testimony on amongst other things police brutality and corruption.

Malaysians have heard excuses and distractions but have seen precious little movement. Such inaction only goes to show the continuing disrespect for the memory of Francis Udayappan and all that he represents.

As G Sara Lily commemorates the loss of her son today, her anguish inconsolable and deepening, we cannot lose sight of that fact. Her tears are a reminder of the kind of wrongs and injustices this Government has allowed to occur and continues to through its inaction.

They are a reminder of why we must be vigilant and continue to lead the nation by our hearts and minds. On March 8th, we reclaimed the nation to ourselves. This nation belongs to us, not to the Barisan, not to the Pakatan. We must continue to show those who do not care, who would allow the inflicting of harm on any one of us that that they have no place amongst those who lead us.

A prayer for Francis, a prayer for all who have suffered at the hands of unjust aggressors and continue to do so.


The Malaysiakini report 'Francis Udayappan remembered' can be read here.

Monday, April 14, 2008

Pakatan Rakyat: A Need For Discipline

It is becoming more evident that one of the main challenges for the Pakatan Rakyat – apart from the steep learning curve vis a vis governing the states it captured – is to maintain discipline not just within the individual coalition members but throughout the coalition.

Looking back, one of the factors that led to voters rejecting the Barisan was the perceived double-speak or even hypocrisy of the leadership. To a large extent, this perception was fueled by the way in which senior cabinet and party members, Nazri and Zainuddin in particular, kept making statements that were not only counter to logic and reason but also to any reasonable scheme of due governance. These statements, made as they were by such senior officials, became statements of the Prime Minister in the minds of many.

This is not unreasonable. Much in the same way, the very positive positions being taken by Zaid at the moments are making some consider the possibility that we may actually be seeing the start of reform. It is common sense; conduct of delegates reflect on leadership.

It is apparent therefore that leadership of both the Barisan and the Pakatan must ensure that positions being taken publicly on matters of governance must be consistent with the declared policy of the administration. Inconsistency can in no way lend to confidence, creating as it does ambiguity and uncertainty in its wake.

I note that the leadership of Pakatan Rakyat has issued a statement that leaders and members of the Pakatan are to stop expressing views contradicting those that have been mutually agreed upon (‘Pakatan not forum for personal views’, NST, 13.04.2008). The statement is reported to have declared, amongst other things, that “Although there have been individuals who expressed views different from the agreed agenda of Pakatan Rakyat, those views are clearly personal. They do not represent that of any of the parties in Pakatan Rakyat”.

The fact that the leadership of the Pakatan Rakyat has had to issue a statement to my mind points conclusively to there being a problem with persons of influence in the coalition feeling either the need or it being thier right to make statements which reflect on the coalition as well as the political parties to which they belong. This is problematic, especially during these early post-Election and Pakatan Rakyat times. Statements made without due consideration to the common agenda of the Pakatan Rakyat or the way in which these statements will be misunderstood will give opportunity to detractors to undermine confidence.

This is particularly so in matters pertaining to the administration of Islamic affairs. Statements made at any level suggestive of a desire to entrench or widen Islamic rule in the public sphere are destructive not only of the currently fragile commitment of the voter base to political change, their having in their minds taken a huge risk in shifting their support, but also the delicate but crucial balance between the coalition members of the Pakatan Rakyat. Religion is a personal matter and the last fifteen years of Islamization trends have left this country deeply divided and raw.

I appreciate that there will always be a need for the leadership of a political party to appeal to their own membership either to shore up confidence or to increase influence. This is a fact of political life. And were Malaysia to be where it was prior to March 8th, there would be no concern.

However, things have changed. We have the beginnings of a new trend in democracy. Much hinges on the success of the Pakatan Rakyat and care must be taken to not make a difficult situation even more so. The moderation of expressions of opinion is therefore vital. UMNO learnt the hard way that the publicizing of sensationalist rhetoric intended for internal consumption could and would boomerang. The same will happen to the Pakatan Rakyat.

We have recently read of the exchanges by PAS, through Tok Guru Nik Aziz, and DAP, through Karpal Singh. These have resulted in the media characterizing Karpal Singh as being anti-Islam in the eyes of Nik Aziz. In an article published in The Star on 07.04.2008 (MB: Karpal belittling PAS), the PAS spiritual leader is quoted as saying “I want to know what is wrong with Islam and where does he disagree with Islam.

Even if the reporting has not been fair, and there is nothing to suggest that this has been the case, the fact remains that statements like these will be used to feed a perception and create mistrust. As I understand it, Karpal Singh is merely attempting to establish that the constitutional framework of this nation is a secular one. Nik Aziz may be attempting to argue that there is nothing objectionable about the value base of the nation being an Islamic one, and he may be right. The exchange is one that need not have taken place in the public arena.

In the same vein, a recent article appearing in Harakah (Selangor pergiat dakwah, wujud surau di pasar malan, tani), in effect, represents Dato’ Dr Hasan Ali, exco member of the Selangor State government responsible for amongst other things religious affairs and Malay adat, as having developed a close working relationship with the Jabatan Agama Islam Selangor (JAIS) aimed at allowing for greater efforts in aid of promoting and propagating the Islamic faith in the state of Selangor. This will, according to the article, include the establishment of ‘moral policing’ enforcement frameworks.

Again, even if the article was intended for internal purpose and is a statement of aspiration, the messaging has had a wider impact and will continue to do so. They will create an impression that PAS has ambushed those who took a chance on it, even it’s co-coalition members, where this is not the case.

It is evident that this state of affairs must be addressed. While it is apparent that there is a need on the part of the coalition members to build greater understanding of their respective priorities and value bases, and that more attention needs to be paid to improve public relations, there is also a need to obtain and ensure the commitment of the individual party members to the common agenda of the coalition. This can only be achieved if these members understand the important of discipline on their part, not only for the purposes of their own political parties but to the coalition as a whole. In the minds of those who observe, personal views may be seen as being views of the coalition. Further, where those views are inconsistent with the coalition agenda, it will be perceived as being a breaking of ranks.

That cannot be good, not just for the Pakatan Rakyat, but this nation.


Wednesday, April 9, 2008

Footnote 38

I am reading Farish Noor’s ‘Islam Embedded : The Historical Development of the Pan -Malaysian Islamic Party PAS (1951-2003)'. It is an impressive work that provides valuable insights into both the workings of PAS as well as the struggle for independence and identity.

I aim to write about the work and Farish’s wider contribution to Malaysia as an intellectual once I have finished it. For the moment, allow me to share a thought that came to mind as I read of PAS’s first steps into the political arena.

The pursuit of freedom is an endless struggle as one moves from one state of oppression or subjugation into another, both within and without. So many of us take our freedoms for granted, losing sight of what is crucial in our desperate rush towards what is not. We overlook what so many gave up, will give up, for those freedoms.

In the process, we trample on, over, the foundations of our independence without even a thought for what it is we are doing.

Footnote 38 to chapter 1 of the book tells a story all of its own, underscoring the fact that there will always be those who will exploit our freedoms for their own gain. Footnote 38 is remarkable for the fact that the story it tells could be a story from the present, and not the past.

It reads:

Ahmad Boestamam (Abdullah Sani Raja Kecil) was born on 30 November 1920 in the village of Behrang Ulu near Tanjung Malim, Perak. His parents were Minangkabau immigrants from West Sumatra. He studied at the Anderson School, Ipoh and then began a career in journalism. He wrote for a number of local newspapers before writing for Kuala Lumpur-based Majlis; the editor was radical nationalist Ibrahim Yaakob. Boestamam was one of (Kesatuan Melayu Muda’s) founders. In 1941, he was arrested by the British for anti-government activities, and released by the Japanese during the occupation period. Boestamam returned to active politics in 1945 and took part in the formation of (Partai Kebangsaan Melayu Malaya), becoming head of (Angkatan Pemuda Insaf), its militant youth wing. After his detention by the British during the emergency (1 July 1948-28 June 1955), Boestamam was persuaded to found (Parti Rakyat Malaya). During the period of Konfrontasi with Indonesia, Boestamam was placed under detention by the Malaysian government. He was the first Malaysian member of parliament detained under the ISA…


Thursday, April 3, 2008

A Test For The 'Reform Cabinet'

Concerns have been expressed about proposals made at the conclusion of a seminar organized by the Islamic Institute of Understanding Malaysia (IKIM) and the Syariah Judiciary Department recently. As reported by the media (‘Proposal to prosecute non-Muslims for khalwat’, The Star, 3rd April 2008), these proposals include the prosecution of non-muslim parties to the offence of khalwat, though in the civil courts, increasing the penalties to include whipping for the syariah offences of khalwat, prostitution, consuming alcohol and involvement in gambling activities and the establishment of rehabilitation centres for those convicted of moral and faith offences. Though reference is also made in the media to a proposal concerning apostasy, no details have been given. Judging by the other proposals, it would not be improbable that it proposes the criminalization of apostasy.

In a nutshell, these proposals, formulated as a draft resolution, which is to be submitted to the Attorney General’s Chambers, aim at increasing the role of Islamic law in the public life of Malaysians. As I have said before, in my view, the extent to which Islamic law has been made to be applicable in the public law sphere in Malaysia is not supported by the Federal Constitution. The Constitutional framework envisaged Islamic law being relevant only to the personal law of persons professing the religion of Islam to the extent that the same did not conflict with the fundamental liberties of these individuals. We have however seen how constitutional safeguards have been eroded through judicial pronouncements, a situation which has culminated in a deeply entrenched mindset that the Islamic legal system is legitimately a system of parallel standing to the secular civil law system.

The draft resolution of the seminar reflects this mindset. It is eerily consistent with the statement issued by a coalition of Islamic NGOs shortly before the General Election, one which, in effect, called for the implementation of Islamic State measures.

I do not agree with the correctness of these views. As I have said elsewhere, the Federal Constitution does not envisage the establishment of an Islamic State nor does it allow for the implementation of measures aimed at the articulation of Islamic law in public life. For this to be permitted, the Federal Constitution must be amended. Until this is done, no matter how well intentioned proposals to this effect are, they must remain as just that, proposals.

It is wholly repugnant to any notion of a united, harmonious Malaysia for non-Muslims to be convicted, directly or indirectly, of offences that might rather ambiguously be called Islamic moral or faith offences. In my view, it is equally repugnant to subject Muslims to moral policing. I believe that there is constitutional basis for rejecting the validity of such offences though this remains, as yet, unarticulated in the courts.

The proposals are basis for grave concern for two reasons. Firstly, apart from the questionable legality of the proposals, they are deeply worrying for the fact of whose views they are. In this I do not intend to refer to individuals but rather the agencies involved. IKIM is the government linked agency that is charged with the articulation of Islam Hadhari. The Syariah Judiciary department is the department charged with overseeing the administration of Islamic law through the syariah courts. The resolution that is being submitted could therefore be said to be a resolution of agencies of the Government and are, to that end, potentially of great influence. This state of affairs is not easily reconciled with the declared vision of the Barisan Nasional Federal Government of a progressive and moderate nation. Not only do the proposals smack of ‘talibanism’, they have quite predictably failed to address the more fundamental problems affecting the ummah in Malaysia in their not unusual preference of form over substance.

Secondly, the proposals suggest an intent on the part of the agencies concerned to persist in attempts to perpetuate divisive delineations of race and religion as well as the underlying supremacist positioning. Coming so soon after the devastating results of the General Election, I cannot help but ask whether the proposals are in a way an attempt to up the ante, so to speak, in what is already a very confused state of affairs. Whatever the case, civil society and the political parties must be vigilant in ensuring that responses are measured and tactful. Were they the views of individuals who were in the extremist minority, aggressive responses might not have any serious consequences. These views are however being presented as the views of IKIM and the Syariah Judiciary Department. Responses carry with them the possibility of serious reprisal or repercussions.

As to how this reflects on the Barisan Nasional Federal Government, much will depend on how the Government responds. Civil society is entitled to expect a response. Religious supremacism was one of the key issues in the last General Election and the Adbdullah Badawi administration has promised reforms across the board. This could be one of the first tests of the sincerity of the administration. A failure to respond from a moderate, progressive and constitutional perspective will further convince Malaysians that the Government only pays lip service to notions of unity and harmony.