Tuesday, September 30, 2008

Let Us Not Forget

Let Us Not Forget

This Hari Raya, sixty four individuals will be prevented from spending time with families and loved ones the way they rest us of will. What stops them from doing this is not a term of imprisonment, they have not been charged or convicted or any crime, nor incapacity, they are as capable as you and I. Detained under the Internal Security Act in Kemunting, the barrier that lies between them and the rest of us is the judgment of one man, the Home Affairs Minister.

As a young boy, I used to read ‘2000AD’. Through this I came to know of Judge Dredd and how he and his fellow police officers were ‘Judge, Jury and Executioner’. And even though the guns, motorbikes, violence and women in leather were really my focus, an understanding of why the rules had to be suspended in that comic-strip world did filter through. The situation was extreme; these enforcers were the last bastions against a world of total chaos. They were the law because the situation demanded it.

The justifications the Government offers for its continued use of the ISA are strikingly similar. We have been told, in one form or the other, that those detained are threats to national security. We are urged to understand that there are compelling reasons that make it a matter of critical importance that they be detained without trial. Were they left free to work their schemes through to completion, it is said, the nation would be in grave danger.

As much as the current Home Affairs Minister may think he is Judge Dredd (tread with caution, the image of the Minister in leather, zips and boots is not for the faint hearted), he should perhaps appreciate more fully that Malaysia is not facing the kind of apocalyptic prospect that the ISA was designed for. The extreme gravity and urgency warranting summary detentions is conspicuously absent. We are a nation at peace; armed insurrections are a thing of a distant past. We would not be plunged into chaos, democracy destroyed, if we stopped to smell the roses, or try those detained in court for that matter.

Circumstances are such that we are left with little choice but to doubt the legitimacy of detentions under the ISA.

How are we to believe that those detained were in fact the serious threats they were supposed to have been when so many of them had gone on to serve the Government in one way or the other? Dato’ Seri Anwar Ibrahim was detained in 1974 and kept in detention for some twenty months. He went on to serve the nation as Education Minister, Finance Minister and, ultimately Deputy Prime Minister. Datuk Dr Maximus Ongkili, our current Minister of Science, Technology and Innovation was also detained for some two months in 1991. They are just two of numerous instances.

How are we not to doubt the bona fides of detentions when the ISA was amended in 1989 to put the Minister’s decision to detain beyond the reach of the law. How else is one to characterize restricting the scope of review to merely matters of procedure? Scrutinizing detention orders to see whether the Minister dotted his i’s and crossed his t’s while he thumbs his nose at you from behind his legislative barricade is not a process that inspires confidence.

How are we to trust in the sincerity of explanations when though our current Prime Minister declared in 1987 that, “Laws such as the Internal Security Act have no place in modern Malaysia. It is a draconian and barbaric law.” he did an about face in 2003, saying instead, "We have never misused the Internal Security Act. All those detained under the Internal Security Act are proven threats to society”. The irreconcilable positions reveal just how far politics rules the day. That a significant number of those detained through the years have stood in the way of the Government’s political interests only goes to reinforce this impression.

Sadly though, what I have said here is not novel. Many before me have expressed the same sentiment, their pleas having fallen on ears deafened by other priorities it would seem. This has been aided in part by the way in which the issue has consistently been permitted to slip back to the periphery after the initial flurry of excitement and expressions of disbelief that mark the then most recent round of detentions. The issue lies there, in its dark corner, forgotten like those who have been detained; out of sight, out mind.

In allowing for this we have given comfort to the Government, indicating to it that as much as we may have disagreed, it is not a matter of great importance to us. We are as much to blame as those who put the detainees away.

Eid is a time for reflection and introspection; it is a time for resolve. This year as we celebrate and give thanks, perhaps we could pause to remind ourselves how fortunate we are for not having been forgotten, for being able to reach out to touch those who matter to us. Perhaps we could take a moment to see that we are really all that those who slowly fade away under the ISA have.

Let us remember them and the injustice that they have been made to suffer, let us not let others forget.

Eid Mubarak.

(Malik Imtiaz Sarwar is counsel to Raja Petra Kamarudin who was detained under the ISA on 12.09.2008. He is also the President of the National Human Rights Society and blogs as ‘Disquiet’ at www.malikimtiaz.blogspot.com)

(Malay Mail; 30th September 2008)


Free RPK: 2nd Habeas

The application for habeas corpus directed at the Minister of Home Affairs was filed this morning. This challenges the validity of the order issued by the Minister on the evening of 22nd September 2008. As indicated earlier, the scope of review has been limited by the ISA which, by way of a provision which lawyers refer to as an 'ouster clause', excludes the jurisdiction of the court to scrutinize the order except on matters of procedure. The team however feels that we nonetheless have a strong case to argue.

No date has been fixed for the hearing as yet. We expect to know only after Hari Raya.

The first habeas corpus application is still pending. The judge has to make a decision whether to strike it out for being academic. As we see it, it is not as the detention order issued by the Minister was based on the recommendations of the police. The order issued by the Minister flowing from the earlier detention by the police, we take the view that the validity of the earlier detention is of relevance to the question of whether RPK is currently being legitimately detained. This is to be argued further on 28th October 2008.


Thursday, September 25, 2008

How To Be Happy

How to be happy

The idea of enacting a law that deals specifically with race relations in this country is a good one. It is evident that politics, tunnel vision and a lack of imagination have resulted in our society being a great deal more fractured than it should have been, all things considered.

Who would have thought in 1957 that fifty plus years down the line, there would still be a demand for supremacist rhetoric and the fruits of discrimination. But here we are; confused and frustrated, trapped in a labyrinth of our own making. So much so that we have lost sight of plain and obvious truths that could lead us into an age of miracles if rediscovered.

A long while ago, I was rummaging amongst a friend’s book collection and came across a little book by the current Dalai Lama entitled, I think, “How To Be Happy”. Wanting to be happy, I turned to the first line on the first page. If I remember correctly, it said something to this effect: in order to be happy, one had to be happy.

You can imagine how I was somewhat put out by this. If it were that simple, I mused somewhat cynically, we would all be a lot happier. There was surely more to it than that for how else was one to deal with the mysterious complexities of life, I grumbled. I put the book back where I had found it and moved on to a glossy magazine with great photographs.

In hindsight, I realized that I should have paid more attention to that drop in the ocean of wisdom.

Quite a few years later I suddenly realized that over time, life had compelled me to simplify how I dealt with it. It was either that or become victim to the stresses and turmoil that I seemed to have had a knack for subjecting myself to. More and more, I had learnt how to accept the obvious and to say ‘no’ when I needed to, distancing myself from distress, even as I found out how to accept what I did not understand with a more open heart. I saw then that though I had some way to go on my journey, I was relatively happy and that I had got there by, well, trying to be happy.

I tried to find that book again but it had moved on to illuminate someone else's life.

The most obvious truth about being a Malaysian is that all of us, regardless of our background and ethnicity, call this country home and share it with everyone else. We got together at independence because we all believed that we had a place here and that we could live together harmoniously and respectfully for all our benefit. That made us all fulfilled and each of us contributed to its, and each others’, growth.

Somewhere along the way however, we began to take that truth for granted and after a while it was left by the wayside, forgotten. In its place was a void that was soon filled by resentment with a deep, burning need for recognition and belonging that we sated with anything that offered immediate gratification. Race, religion, anything that gave us an identity, was soon being fed to that driving hunger. As with all gangs, those with stronger numbers and greater resource soon ruled the day and discrimination became a way of life.

It still is, and for being so interleaved with so many aspects of our life, is the single, biggest obstacle to our living together harmoniously. It is also the greatest cause of distress and for being that, is something that we must collectively distance ourselves from as we learn how to appreciate and embrace the self-evident truths of being Malaysian.

Discrimination has however become so entrenched that the way forward needs the careful guidance that only a structured policy can offer. A race-relations law, providing for the necessary structures such as a race-relations commission, is arguably the only effective way for such a policy to be introduced and implemented.

Worryingly though, those who have proposed such a law seem more focused on creating more strictures in an already hidebound existence rather than on creating a shared platform for sustainable and inclusive development. This is not the correct approach. We do not need more regulations on what we can or cannot say, we have too many already. What we need is a way to ensure that no Malaysian is sacrificed in whatever way to satisfy the need of another.

For that, a sustained effort must be made to fully eliminate any and all forms of discrimination in public life in this country. Where the race-relations law is concerned, the focus must be on racial discrimination. The law should aim at creating an environment in which the equality of all citizens can be promoted and fostered in the way that the Federal Constitution guarantees. The constitutional scheme aimed at protecting disadvantaged Malays and natives of Sabah and Sarawak through objectively applied affirmative action is not inconsistent with such a goal.

Can we be happy? I think so. It requires us to open our hearts and accept some truths. It needs a little creativity and a lot of trust.

I would like to think we are up to that challenge.

(Malay Mail; 23rd September 2008)


Wednesday, September 24, 2008

Free RPK: It's Not Over

Let me first apologise to you for not having given you an update yesterday. It was a trying day, the culmination of a period of work and stress that began the day RPK was detained. Not just for me but for the other members of the team, in particular Ashok Kandiah and Neoh Hor Kee.

You would have read of how the application was originally fixed for the 26th of September. It was through the enormous efforts of both these lawyers that the hearing was brought forward as it was. It was also through their efforts that the necessary court papers and affidavits (statements on oath) by RPK were obtained as quickly as they were. It was primarily due to their efforts that when, as lawyers say, I got up on my hind-feet in court yesterday, we were ready to give it the best shot we could. I believe that the case we would have mounted for RPK would have been virtually unassailable.

But out attempts were impeded.

I say impeded because at this juncture we do not know whether the High Court is going to hear the original section 73 application now that the Minister has issued a detention order. A fresh application can also, and will be, filed to challenge that order. To be fair to the judge concerned, Suraya Othman J, she considered herself bound by precedent that she thought tied her hands. She acted fairly, albeit conservatively.

As much as some of us may think otherwise, RPK's case is one of many that the judge has to deal with. We must also keep in mind that the judge has not dismissed or struck out RPK’s application even though this was what Federal Counsel sought. It is now for us to attempt to convince the judge that there is merit in proceeding with this application even though she will not be able to order the release of RPK based on this application alone. I would like to think that we still have a chance.

A second habeas corpus application will also be filed to challenge the Minister’s order. We started working on it yesterday. In truth, we are handicapped; the ISA precludes comprehensive review of such an order. Added to this is the legal position that such an order is issued by the Minister at his subjective discretion. The courts have been reluctant to interfere with the Minister’s discretion, save on procedural grounds, on the basis that, firstly, the law does not permit otherwise and secondly, the Minister knows best about national security.

This is the massive obstacle we are faced with.

This is one of the reasons why a section 73 detention is converted to a section 8 detention when the IGP is confronted with a habeas corpus application; the issuance of the Minister's order narrows the scope of review and permits the Minister to shield himself behind a veil of national security. RPK is not the first victim of such a strategy. We experienced the same difficulty during the so-called JI detentions in late 2002.

There are however peculiarities about RPK’s detention that may give us footholds to ease our ascent. The media has reported that the Minister issued the detention order on the recommendations of the police. These pertained to the so-called anti-Islamic articles that RPK is supposed to have written. We at least know the basis of the detention and are able to bring it into focus when we get to court.

There are also no other legal tricks that can be pulled by the Ministry. The issuance of the detention order is as problematic for RPK as it can get. Some have said that this makes the detention virtually immune from challenge. I would like to think that the interests of justice can always be served if we remain hopeful of finding the path to it.

Every case in court brings us into uncharted territory and with it surprises. I have had my share. In 2001, Justice Hishamuddin ordered the release of Abdul Ghani Haroon and N Gobalakrishnan. He also prevented the police from re-arresting the two. I was in court the day he pronounced the orders and the sheer exultation I felt as he did remains with me to this day as has the awareness that there are those who will do the right thing when times seem darkest.

RPK and the other civil society leaders who have shown us the way started a process to transform this country. This legal campaign is a part of it as is the mounting civil society pressure against the ISA that have spring-boarded off his detention and that of Theresa Kok, Tan Hoong Cheng and the HINDRAF 5. RPK knew what would happen and lent himself to the process. For that reason above all, he is firmly ensconced in my mind as a patriot.

We must not lose faith. The fight has not ended, it has just begun.


Monday, September 22, 2008

Free RPK (Update)

RPK's habeas corpus application is now scheduled for tomorrow morning (23rd September 2008). It will be heard by Justice Suraya Othman of Criminal High Court 1. The court is situated on the 5th Floor (left wing), KL Court Complex, Off Jalan Duta.

RPK has been detained under section 73(1) of the Internal Security Act. Unlike a detention by the Minister under section 8 (as was the case with the HINDRAF 5), a court must review a section 73 detention on an "objective" basis. It must satisfy itself objectively that there was a reasonable basis for the detention in the context of national security. The detaining authority is therefore under a burden to establish that the activity complained of (on the part of RPK) could reasonably be characterised as a threat to national security.

If the court allows the application, RPK must be released immediately. If the court dismisses it, an appeal lies directly to the Federal Court.


Saturday, September 20, 2008

Navigating The Constitutional Impasse

It seems that we are well on the way to a constitutional crisis. A deadlock looms and, as some commentators including Professor Aziz Bahri of the International Islamic University have suggested, much will depend on how proactive the Yang di-Pertuan Agong can and will be in breaking it. In this, and more, it is becoming increasingly apparent that that the line between those who want change and those who do not will be the Federal Constitution.

Let us consider the objective elements.

Firstly, any Prime Minister of the nation must necessarily be the person who commands the confidence of the majority of the members of the Dewan Rakyat. As to who it is that commands the confidence, this is a decision for the YDPA “in his judgment”.

Until the events in Trengganu shortly after the last general and state elections, it was commonly thought that this was really a matter of having the numbers, that is the person with the most number of supporters in the chamber would become the leader of the government. The interventionist position of the Regency Council, for all purposes and intents the Sultan, earlier this year shed light on how things could justifiably be viewed differently. The appointment of Ahmad Said as the Mentri Besar possibly set a precedent and gave us foundation for the argument that it was ultimately the judgment of the monarch that mattered.

This is relevant as the material provisions in the Federal Constitution are virtually identical to those in the Trengganu state constitution. The YDPA could, as such, approach the issue in a similar way. This is not necessarily impossible; the YDPA is the Sultan of Trengganu.

Secondly, a Prime Minister who no longer commands the confidence of the majority has two options. He can ask the YDPA to dissolve parliament and use that to call for fresh elections. The YDPA however has an absolute discretion to withhold consent and as such, could legitimately refuse. This would leave the Prime Minister with no option other than to tender his resignation and that of his Cabinet and pave the way to the appointment of a new Prime Minister, one who in the judgment of the YDPA commands the confidence of the majority.

Thirdly, the Federal Constitution does not say how to establish that the Prime Minister has “ceased to command the confidence of the majority”. A vote of no confidence is an obvious method but not necessarily the only one. To read the constitutional provision otherwise would not only be unwarranted (an unnecessary implication of meaning) but would also allow for unconstitutional action, such as the use of the provision to impede the expression of the majority of the Dewan Rakyat. It is possible that circumstances could arise where an incumbent government seeks to prevent the meeting of members in Parliament to undermine any attempt by the majority to form a new government. To read provisions of the Constitution to lend to such an outcome would be wholly repugnant to the scheme the Constitution puts in place.

As such, it is open to the YDPA to form a view through other means, such as direct meetings with the majority of the Dewan Rakyat, so as to satisfy himself that the incumbent Prime Minister has in fact ceased to command its confidence. Events in Perlis and Trengganu earlier this year are illustrative of this course. That this approach is not necessarily ideal, for being amongst other things, fraught with practical difficulties, does not in itself militate against such an approach having been within the contemplation by the founders of the Federal Constitution.

Fourthly, assuming the YDPA nonetheless felt it necessary to have a vote of confidence put through the Dewan Rakyat, a question arises as to how this would be approached. If parliament were sitting, this could arguably be put through the Dewan. Such a motion would be extraordinary and exceptional. Going to the very foundations of the legitimacy of the incumbent government, it would have to be treated as a matter of priority. To allows such a motion to be encumbered by the procedural requirements of parliament would be wholly repugnant to the spirit, if not the letter, of the Federal Constitution. Even though the Speaker does have control of proceedings in the Dewan, he must allow for urgent debate and a vote on the motion if there is sufficient foundation for the motion. He has taken an oath to preserve, protect and defend the Federal Constitution and, therefore, the system of governance it puts in place. Such a motion and its outcome are self-evidently matters of grave constitutional significance and impact that cannot be ignored.

This would be more the case if the YDPA gave indication that it was His Highness’ wish for the motion to be dealt with as a matter of utmost priority. Under the Federal Constitution, Parliament is constituted of the YDPA and the two houses of parliament and an expression of His Highness’ intent cannot but be given great weight.

If parliament is however not sitting, a question arises as to whether the motion should be deferred to a time when parliament reconvenes. The question of the legitimacy of an incumbent government is not a matter that can be taken lightly assuming there is reasonable foundation for a belief that it no longer commands the confidence of the majority. The government does not adjourn as parliament does and it continues to act on the basis that it has the mandate to do so throughout its term. It would therefore be only logical for parliament to reconvene on an urgent basis to debate and vote on the motion. This however raises the question of how parliament is to be summoned.

The Constitution provides that the YDPA summons parliament. This is arguably done on the advice of the Prime Minister and it is for this reason that parliamentary procedure provides for reference to the Prime Minister. The Constitution is however silent on a situation where the motion in issue is one aimed at establishing that the incumbent Prime Minster no longer commands confidence. So are parliamentary rules. Though it could be said that there is as such no power with the YDPA to summon parliament, to read the Constitution as vesting a discretion in the incumbent Prime Minister to determine whether the Dewan will meet on whether he or she commands the confidence of the majority would lend to an obviously self-defeating outcome. It would after all be in the interests of the incumbent Prime Minister not to allow for the summoning of the Dewan. This cannot be right.

It is reasonable to read the Constitution as providing for this exceptional situation in the following way: the YDPA has the discretion to summon parliament for this purpose in view of it being an incident to the absolute discretion of the YDPA to appoint as Prime Minister a person who commands the confidence of the majority. Simply put, the YDPA must be given means to ensure that the Prime Minister is a person who commands confidence if His Highness is given reason to apprehend otherwise.

As such, His Highness could direct the Speaker to summon the Dewan Rakyat to debate the motion. The Speaker would be at risk of defying a legitimate direction of the YDPA and breaching his oath of office, with all the consequences of such an act, if he refuses. Alternatively, the YDPA could direct the incumbent Prime Minister to summon the Dewan. A refusal would similarly run the risk of being an unlawful defiance of a legitimate direction or a breaching of the oath of office.

Sixthly, in the event the YDPA forms the view that the incumbent Prime Minister has ceased to command the confidence of the majority, the YDPA could then appoint a new Prime Minister. A further question arises as to whether the incumbent Prime Minster must firstly tender his resignation and that of his Cabinet. Though this would be ideal, I have my doubts as to whether it is a necessary prerequisite, especially if the incumbent government intends to undermine the forming of a new government. Though the Federal Constitution does not provide for the dismissal of a Prime Minister, the appointment of a new Prime Minister would merely be giving effect to the wishes of the majority of the Dewan and system of governance put in place by the Constitution.

But then, what if the incumbent government refuses to vacate office? If the new Prime Minister is sworn in and given the necessary instruments of power, the incumbent government would in effect no longer be the government of the day and would no longer in law be lawfully possessed of power. Those individuals who lend themselves to this situation could be viewed as trespassing and, worse still, be seen as attempting to usurp the legitimate power of a lawful government. This has grave consequences.

The analysis set out above is based on my understanding of the Federal Constitution and it goes without saying that others may take a different view of the issues. However, it must be borne in mind that as the supreme law, the Constitution defines the way in which we are to organize ourselves and arrange our affairs. This extends to transitions of power, something which the founders could not but have contemplated as being possible. The Constitution was drafted in general terms so as to ensure that it was relevant and applicable to situations in an evolving nation and remain a vibrant and living law. The answers are there if we look for them fairly and objectively.

In the difficult times ahead, it is clear that the various factions will take positions on key constitutional provisions and interpret them in a way that favour their intended aims. In this, the YDPA plays a crucial role as does the Judiciary. It is therefore vital, and I say this respectfully, that both these institutions be seen as being detached and far removed from the politics of the unfolding events. How the approaching crisis is resolved, and the way in which this is done and seen to be done, are matters that go to our ability to meet the future with the stability and conviction that this nation requires to meet the challenges ahead.


Tuesday, September 16, 2008

All Present And Accounted For

All Present And Accounted For

Like many others, I stopped breathing last Friday evening as I saw my worst fears begin to materialize.

For some time now, talk of a crackdown similar to the 1987 Operasi Lalang had been intensifying, in part due to the Government’s unapologetic stance as to its readiness to use the Internal Security Act when it thought it necessary. This had not given much comfort to those who remember the dragnets of 1987 and 2001. If history had taught us anything, it was that in a world where politics determines so much, “when necessary” is a heavily nuanced and very subjective notion. We cannot be faulted for assuming that UMNO will employ the ISA to its convenience if it is in its political interests to do so.

As the events of the weekend have shown us, our assumption has some basis.

By early Friday afternoon, I had learnt that Raja Petra had been detained. I had also begun to hear the rumours that this was the start of a wider sweep that was to take place over the weekend and was profoundly troubled by them. I found myself struggling between not wanting to believe that the Government would be prepared to take that course, it being so counterintuitive, and being forced by circumstance to accept that the terror had started. The situation was not clear. there had after all been prior indication of the Government’s intention to detain Raja Petra specifically. Furthermore, no one had been detained since Petra’s detention at about 1.50 pm. Like all victims of impending disaster, clutching at straws I began to try to rationalize my way out of what seemed like a certain outcome.

I had begun to make some headway when I got news that Tan Hoon Cheng had been detained.

Up to that point dinner had been congenial. It carried on in complete silence, each one of us there thinking of who it was that we knew who could possibly be picked up. We recalled how there had been no apparent pattern to the detentions of 1987 and appreciated that the authorities would want to be able to point to random causes to argue against accusations of a political plan if in fact there was one. Academics and missionaries had been swept up in Operasi Lalang, even as the opposition was neutered by the removal of its leaders and prime movers.

The detention of Hoon Cheng meant that virtually anyone who had in some way or other been a little more public than average was a potential target. As concerned friends and acquaintances began to call in, for my sake and a number of people I knew and cared for, the yawning abyss of uncertainty before me brought home the painful realization of the potential costs of standing up for beliefs and a better country. Liberty and the integrity of mind, body and spirit were really no more than a question of not being in the wrong place at the wrong time.

The news that Theresa Kok had been detained rammed that conclusion home. She had done nothing out of the ordinary, more so when compared to other personalities in politics. Any doubts I had began to dissipate; there was something bigger afoot.

It was a long night. Tracking news about people I knew, speaking to them, making sure that we all felt connected to each other, to share what little encouragement we could. Speaking to others, trying to help spread the message that whatever was to happen we were to meet it calmly and with the belief that things would be for the best.

But even as the pieces fell into place and we began to face up to the probability of a wide sweeping operasi, the differences began to emerge and I could see that this was not 1987. Malaysians were reaching out to each other, messaging and calling, organizing vigils, lending their support, standing up to the intimidation as best as they could with a calmness that shone out into the gloom that threatened to engulf us, dissipating it. Looking out, I saw lights on in houses on the street where I was late into the night, early into the morning. They were beacons of hope that promised the dawn of a new day.

And come it did, something happened.

Hoong Cheng was released, accompanied by a farcical explanation that only strengthened public resolve. Raja Petra and Theresa are still under detention but their families have got to see them and their lawyers are hard at work on what in my view seem to be promising cases for habeas corpus. No other persons were detained, perhaps in part due to Barisan Ministers and component parties having taken positions against the detentions, echoing the sentiment of outrage expressed by civil society. In an unprecedented move, an UMNO Minister tendered his resignation on principle for the unjust use of the ISA. And the Government has had its hands full attempting to explain the inexplicable as it never has had to before.

Whither Malaysia? We are right here, all present and accounted for.

(Malay Mail; 16th September 2008)


Free RPK

We filed for habeas corpus this afternoon. Time to fight the good fight.


Selamat Hari Malaysia

Selamat Hari Malaysia.

This photograph gives you an impression of the state of euphoria in Kelana Jaya last night at the Pakatan Rally (photo by TV Smith, more here; photos by Chee Seong here). More importantly, it gives you an idea of what a pluralist Malaysia would look like. I say would, not could, because it is an inevitable reality built on the undeniable truth that the only thing that keeps us apart from each other is politics. We are all anak Bangsa Malaysia.

September 16th, 2008. Whether it happens today, tomorrow, or the day after, Malaysians will get a government that they are entitled to, one that stands for truth, justice and fairness for all. Anwar Ibrahim says that the Pakatan Rakyat has the numbers. Even if they do not, even if it takes us a few more months or years to get to a point where Malaysia will look like it does in this photograph, with or without the Pakatan Rakyat, we will get there. I am convinced of this.

We are reclaiming what is ours, a free Malaysia.


Update: see also Thinkvision's Weblog for more photos and commentary

Friday, September 12, 2008

RPK, ISA And The Rest Of Us

Malaysiakini reports that RPK has been detained by the police under the ISA. At the time of publication, the RPK was still at his house with police officers.

The news has spread fast. With it are concerns that a wider 1987 type crackdown is going to happen or that even worse, there is going to be chaos and racial violence.

We must remain calm. Reactionary behaviour and fear mongering is not going to make things any more sensible or easier. Things will unfold as they have to.

The Government must also do its part and explain clearly how RPK is a threat to national security and why he has been detained. He had presented himself everytime he was asked to at police stations and in court. He has been charged, has not attempted to flee the jurisdiction and has indicated his desire to defend himself in court. Access to Malaysia Today has been permitted. And though four police reports have recently been lodged against him by agencies linked to the Government, a consideration of those police reports in the bigger picture would reveal the unreasonableness of his being detained on the basis of what has been alleged in those reports. The Government must make the basis of its decision clear and why it is RPK cannot be tried in an open court.

And for the rest of us, let us stand united and firm in our belief in a better Malaysia.


Tuesday, September 9, 2008

One People, One Destiny

One people, one destiny

I was reading the Proclamation of Independence again recently. It struck me how the proclamation starts with not only with the utterance “In the name of God, the Compassionate, the Merciful” but also, in the next sentence, “Praise be to God, the Lord of the Universe (Rabb Al-‘alamin) and may the blessings and peace of God be upon His Messengers.”

The expression Rabb Al-‘alamin resonates. It is my favourite description of the Creator, saying to me that Allah’s embrace is so all encompassing, like a mother’s, that no one, not a single one of us, will ever be allowed to fall from His cradle. ‘Abdullah Yusuf Ali conveys the nuances of this phrase richly in translating it as the “Cherisher and Sustainer of the Worlds”. “Worlds”, not “world”. Worlds. ‘Abdullah Yusuf Ali says, “There are many worlds, astronomical and physical worlds, worlds of thought, spiritual world and so on. In every one of them, God is all-in-all.” I agree. The world I live in is in many ways different from the world in which my neighbour lives. My family, friends, experiences, history and spirituality are so different from his, as are his from mine.

As I read the opening words to the Proclamation again, I was reminded of how in invoking Rabb Al-‘alamin and His Messengers, our founders had not only proclaimed this nation as one in which Islam was the religion of the Federation, they had also recognized that the Malaysian universe was one made of up of so many different worlds. The Proclamation goes on to declare: “AND WHEREAS by the Federal Constitution aforesaid provision is made to safeguard the rights and prerogatives of Their Highnesses the Rulers and the fundamental rights and liberties of the people and to provide for the peaceful and orderly advancement of the Persekutuan Tanah Melayu as a constitutional monarchy based on Parliamentary democracy.”

We are one people, all of whom have a common destiny. We come from different worlds and we will continue to have our own peculiarities even as we forge a common identity. Islam is embedded in the Constitution and that will not change. Leave aside the practical impossibility of ever denuding the Constitution of Islam, our shared history and our present are so interleaved with the faith that its absence would leave a void for many of us, even non-Muslims. A friend of mine of another faith used to complain about the azan until she spent a long time away and realized how it had given her comfort, signaling the end of night and the start of another day. In the same way, the funds that are used for the advancement of Islam in this country come, in part, from taxes collected from all of us and we do not hear complaint about it.

An appreciation of this, and the equally protected status of the Malays, must necessarily bring with it an equal understanding of our need for mutual respect. This is not just about the guarantee of equality in the Constitution, this is about what common good requires of all of us. I do not profess to be an expert but I recognize at my core that God made us equals even as He made us different so that we could understand acceptance within His full embrace. I understand that our diversity mirrors the worlds that are His domain, as much as I understand that our diversity is a reflection of His Oneness. For this reason, when we cleave any one of us away from the rest of this society, it is a cause of great pain and anguish. There are sensitivities that have to be handled very delicately even where we feel that there are issues that need to be confronted. Perhaps too belatedly, I understand now that so focused on law and constitutional rights have I been that I have at times overlooked the need to be less robust in the way I explained myself; though things needed to be said, and still do, they could have at time been said that much better.

When Dr Rais Yatim opened the conference at which the proposed Interfaith Commission Bill was to be discussed, he said something that has remained with me since, “We must know the sharp edges protruding in a multi-religious and multi-racial society.” Rightly so, for how else are we to understand how to live with each other more harmoniously unless we know the sharp edges. We must confront, understand and resolve. And while sensitivity is necessary, it must not be permitted to keep us away from what we have to do as a community of worlds or to shut us out.

We must also not blind ourselves to the fact that sensitivity is a two-way street. No one person or community has a monopoly over the right to feel pain. We all bleed the deep, red blood of Malaysia. Tanah tumpahnya darahku.

(Malay Mail; 9th Sept 2008)


No ISA For Ahmad Ismail

The call by Gerakan Wanita to have Ahmad Ismail detained under the Internal Security Act must not be acceded to.

Judging by media reports of the events in Penang at his latest press conference, yesterday what Ahmad Ismail did and said are not easily reconciled nor accepted. I found him and what he said to be offensive. People I know felt the same way, some were also made fearful and anxious, though whether about Ahmad Ismail or whether UMNO was going to use this to its advantage it is hard to say.

Having said that, what Ahmad Ismail did and said are not grounds for a detention under the ISA. Nothing can be. The law is draconian, inhumane and wholly against constitutional freedoms that are central to our existence as Malaysians in a modern, democratic Malaysia.

If Ahmad Ismail has done wrong, and I believe that enough has been said and done to warrant at the very least an investigation into incitement crimes under the Penal Code, then charge him for his crime and give him his day in court. He, like everyone else in this country, deserves that. As repulsive as we may find him or his values or his politics, he is innocent until proven guilty.

Investigations underway are apparently into an offence under the Sedition Act. I have written elsewhere that the offence of sedition, as defined under the Sedition Act, is in my view unconstitutional for contravening the freedom of expression guaranteed under the Federal Constitution. Though not absolute, the constitution limits incursions by legislature to those that are necessary in the interests of democracy and proportional to the wrong sought to be curbed. The Sedition Act does far more.

Charge Ahmad Ismail, let bail be opposed if it must, but do not detain him under the ISA.


Monday, September 8, 2008

Suspicion Of Tyranny

"I realise that the police have a difficult duty to perform to maintain the public peace and security. They should by all means exercise their powers under the law but in exercising these extra-ordinary powers of detention without trial, they should be careful not to raise in the minds of the public any suspicion of tyranny."

The late Justice Harun Hashim (as he then was) in IGP & Anor v Lee Kim Hong [1979] 2 MLJ 291


Saturday, September 6, 2008

Give Ahmad Ismail A Break, Will You?

I think we should leave Ahmad Ismail and his merry men to do what it is they do best; reinforce the choices voters made on March 8th when they decided to hand over Penang to the Pakatan Rakyat.

Look at it this way. Mustafa K Anuar’s incisive blog-post on the subject (“The Sorry state of apologies in Malaysia”) points to the possibility of more fuss than necessary being made over the issue to justify more aggressive action. This is a view that others share (see, for instance Malaysia Waves, "Ahmad Ismail Reciting Racial "Historical Fact", but for What?").

As we all know, there are those who fervently believe that there is great political opportunity and advantage in race and religion. The threat of racial unrest is a tried and tested method for the deployment of the Internal Security Act. It would appear, judging by Minister Syed Hamid’s comments in the media about the police reports lodged against Raja Petra by several Islamic agencies and departments, the authorities are already exploring the possibility of silencing the seemingly unstoppable Raja Petra on this basis (see “Syed Hamid: ISA can be used against Raja Petra"; Malaysiakini; 6 Sept 2008).

It would not be unreasonable to think that in as much as the Barisan Nasional, and in particular UMNO, may be publicly ridiculing the idea of the Pakatan Rakyat being in a position to form a government by September 16th, or at all for that matter, its less public view of the matter is one fraught with anxiety at the possibility, if not probability. The mind boggles at the possible impact of a new government, in particular on the personal interests of individuals whose actions may have been less than above board. The potential take over is as such no longer merely a matter of political survival for some. To them, it is a matter of survival, pure and simple.

All this points to the real possibility of a desire to take more extreme measures. Desperate times, after all, require desperate measures.

For this reason, it would be prudent to employ restraint in the way we react to the entire issue. That Ahmad Ismail was inelegant in the way he made his point and that he caused offence is beyond dispute. He did and if the media reported him correctly (and this seems to have been the case, why else would the Deputy Prime Minister offered an apology), what he said smacks of racism. But then, a lot of other people make these kinds of statements all the time. That Ahmad Ismail is someone senior in UMNO does not make his statement any more exceptional as the sentiment he expressed is of the kind that we have sadly come to expect from UMNO officials.

The fact that his statement has afforded a political opportunity to those in whose interests UMNO bashing lie should not make it exceptional as well. The bigger picture demands that we view it so and not distract ourselves from what needs to be done.

The objective is to democratize Malaysia. There is a stronger possibility of this happening if a new government is formed. Reactionary behaviour will allow the powers that be to set in place obstacles to that process by validating aggressive reprisal.

We do not want that. We do not need it.

And, after all, if Ahmad Ismail feels the need to throw his weight behind the transformation of Malaysia by making the Barisan Nasional that much more unattractive, should he not be getting our praise and gratitude? Give the guy a break.


Wednesday, September 3, 2008

Project Malaysia: A Commitment

Response has been positive. We are receiving contributions and expressions of interest from individuals with diverse backgrounds.

I would like to address some of the concerns I have seen expressed in some of the blogs that have been kind enough to highlight the inititative. This will also let me clarify its policy.

For Project Malaysia to be effective, it has to be representative. Appreciating that much of what we intend to consider involves politics in one way or the other, it is essential that the political perspective is offered as well. We commit to ensuring that all political perspectives are fairly presented. We have been privileged enough to have YB Nur Jazlan submit a perspective piece which is already on-line. We are hoping that more UMNO and other Barisan Nasiaonal representatives will present their views, they collectively play such a big and important role in all that happens in this country. This applies equally to the parties that make up the Pakatan Rakyat. Invitations have been extended, whether these are taken up is a matter for those invited. Appreciating that limitations impact on our ability to invite all relevant personalities, help us do so. At the same time, we would be happy to receive voluntary submissions. Do not wait for an invitation if you have something to say on the issues at hand. And say it in any language you feel comfortable doing that in. We are at the moment working on the basis that submissions will be in Bahasa Malaysia and English but we will look at how to also feature material in any other language.

Similarly, when we get to the theme on religion or any other subject considered controversial, we wish to ensure that all views are presented. The experiment will not have been a success if we do not. I am as such hoping that all interest groups - including ABIM, ACCIN, FORKAD and so on - will contribute submissions. The only agenda is one aimed at ensuring that a broad discussion of common ground and problem areas is made possible. We need to understand each other and the only way we can do this is by talking to each other, fairly and respectfully. And that, if at all, is the only caveat we have: state what has to be stated, but do it in an objective manner with the understanding that we are having a discussion after all.

Project Malaysia is not about me or any of the other persons involved in it. It is about all of us, or as many of us that want to make it our own. I give you my assurance that that will be the case throughout and am open to feedback that I have strayed from my promise to you.

And for those of you who are sceptical at the moment, all I ask is that you keep an open mind and engage with us, privately if you must, to convince yourself that this is really something that you do not want to be involved in. We would of course prefer it to be otherwise.


Tuesday, September 2, 2008

Project Malaysia - Sighting Common Ground

Project Malaysia - Sighting Common Ground

Some friends and I launched a non-profit initiative called ‘Project Malaysia’ on Merdeka day this year. An on-line journal on key contemporary Malaysian issues, it will run for twelve months during which twelve core themes will, we hope, be deconstructed objectively and comprehensively. Our aim is to offer solutions for a stronger, more united Malaysia.

The idea for the initiative came up towards the tail end of 2006. The Article 11 road-show had become controversial as had my involvement in the Lina Joy appeal at the Federal Court. Circulating, were posters denouncing me as a traitor to Islam and flyers declaring that I was the principal mind behind an anti-Islamic campaign. About a year earlier, I had chaired the steering committee of an initiative aimed at promoting the establishment of a statutory interfaith commission. That too had become controversial, and judging by the campaign in Permatang Pauh, is still something that some see as being useful for purposes of agitation.

Needless to say, these events got me thinking. I had involved myself in these efforts for the same reason that I had been involved in human rights and civil society work since 1996. Appreciating that coexistence in a multi-cultural society such as ours would involve some friction from time to time and that historical antecedents would lend itself to majoritarianism and the unfairness it could entail, my objective had been to find constitutionally just solutions to potentially problematic scenarios. In the case of the proposed commission it had been to find a mechanism by which infringements of religious harmony could be considered with the detached objectivity that problem-solving required. With the Islamic conflicts cases, it had been to highlight the avoidable problems that an erosion of constitutionalism had led to.

No matter what my detractors might say, at no point in time did I advocate the rejection of either Islam as the religion of the Federation, the system of Islamic administration or the special status of the Malays. And yet that is what certain quarters had come to represent with much force. It is readily apparent that the truth had been manipulated and controversy created for the sake of a less obvious agenda, much as it was when the Bar Council held its forum recently.

As I began to appreciate more clearly what it is that had happened, I saw a similar trend in other aspects of our lives. Instead of addressing issues, some of which went to the heart of our ability as a society to remain cohesive and capable of facing the future, it seemed that those in positions of influence were more concerned with scoring points and creating opportunities through proverbial storms in teacups. Added to this was a high degree of politicking from which nothing, it seemed, was sacred, including governance. There was as such a lot of noise and drama, but very little being done.

When confronted, our leaders would have us believe that there was hardly any, or no, common ground on these issues, that they required detailed study by persons unknown, or, all else failing, the matter was too sensitive for discussion. This attitude left little or no means by which issues could be viewed constructively and resolved. Talking to the opposition is only as effective as the opposition is as a means to influencing change and as interested as it is in the issue at hand, the latter not being a given.

The more I thought about this, the more I became convinced that unless Malaysians were given access to objective viewpoints from all relevant perspective, they were going to be constantly in the dark and vulnerable to influence. Difficult scenarios would only multiply.

I began to talk to friends about what it is that could be done. The fact that Malaysia appeared to be awakening, and it cannot be denied that all things said and done the Abdullah Badawi administration did create more space for discussion, was a key element in our discussions. Over time, we began to see the need to challenge preconceptions, not only about issues but also how we were to address them. In this vein, maybe rather presumptuously, we began to look at the possibility of a nation building experiment.

That experiment became known as Project Malaysia. It was meant to have kicked-off about a year ago but schedules, commitments and circumstance made it impossible. In retrospect, this was a good thing as we gained the advantage of the events of March 8th and all that has happened since.

Whether we manage to achieve our goal is something that all Malaysians have a role to play in. We intend to approach each theme in the following manner. An article on the theme will be presented to selected respondents, leaders or experts in their respective fields, and a response invited. The respondents having been selected from the range of relevant stakeholders, it is hoped that a multi-faceted, perhaps comprehensive, analysis of the theme will be presented. Shorter comments on varying aspects of the theme by interested participants should allow us to keep the discussion relevant and real.

Through this, we hope to be able to identify common ground, problem areas and possible avenues forward. At the end of twelve months, we should have a blueprint for a better Malaysia.

As our first step into the void, we chose the theme “Race” and invited responses to a comment entitled “The Politics Of Race”. Already featured are perspectives by YB Nur Jazlan Rahmat of UMNO, Ooi Kee Beng, Tricia Yeoh and Mavis Puthucheary. There are many more to come, some which may surprise. We take the view that the more dimensions the better.

This is, after all, for a better Malaysia.

(Project Malaysia is at www.projectmalaysia.org)

(Malay Mail; 2nd September 2008)