For Justice, Freedom & Solidarity

For Justice, Freedom & Solidarity PP3739/12/2009(022904) ISSN 0127 - 5127 RM4.00 2009:Vol.29No.4

Aliran Monthly : Vol.29(4) Page 1 COVER STORY From constitutional monarchy to constitutional anarchy On 22 May at 3.30pm, the three judges of the Court of Appeal came to a decision that had far-reaching implications by Mohamed Hanipa Maidin

t is 2.30 am in January II 2010. Najib and Rosmah III have just reached their official residence in Putrajaya. Their arrival is met with a letter by the King declaring that Najib has to vacate the residence simply because the King has appointed a new Prime Min- ister replacing him.

The letter sets out this reason namely that Members of Parlia- ment from Pakatan Rakyat (PR) together with a few MPs from Barisan Nasional (BN) have expressed their undivided support ends with the following ultima- King to remove him as Prime Min- for Anwar Ibrahim to become the tum: Mr Najib you are hereby or- ister. new Prime Minister. The letter dered to tender your resignation failing which your premiership The King smiles and softly re- will be terminated forthwith. minds him with this timely ad- vice: The bewildered Najib immediately seeks an audience with the “Mr Najib, don’t you remember King. The audience is duly that on 22 May 2009 at 3.30pm in granted. Najib expresses his dis- the case of Dato Zambry v Dato satisfaction. He laments that it is Nizar, the three judges of the unfair for him to be swiftly re- Court of Appeal unanimously moved as Prime Minister in the ab- held that sence of a motion of no confidence against him in Parliament. He • A Chief Minister (at state level) confidently cites Article 44 (4) of or a Prime Minister (at the fed- the Federal Constitution and in eral level) can be dismissed if turn contends that nowhere in the the King unilaterally decides said Article does it empower the that the CM or PM respectively

Aliran Monthly : Vol.29(4) Page 2 EDITOR'S NOTE

In our cover story, Mohamed Hanipa looks at the constitutional impasse in Perak and the impact of CONTENTS the Court of Appeal’s decision favouring Zambry.

We reproduce a series of statements reflecting COVER STORY Aliran’s stand on the Perak power grab, the consti- ••• From Constitutional Monarchy To tutional crisis and the judicial maneuvering. This is Constitutional Anarchy 222 followed by a series of public statements from promi- ••• Aliran Demands Justice And Return nent personalities, mostly urging the BN team to go To The People's Mandate 666 back to the Perak people and let them resolve the issue at the ballot box once and for all. ••• Dissolve Perak State Assembly 121212

••• Mainstream Media's Role In Anil Netto looks at something that has not been dis- Legitimising The Perak Power Grab 191919 cussed much: the mainstream media’s role in legitimising the power grab in the state executive as ••• One Perak! 212121 well as the legislature. ••• Who Smuggled Ganesan Into The Perak Assembly? 404040 What we now have here is OnePerak! One state with two chief ministers, two Speakers and lots of other ‘unique achievements’, making it truly a one-of-a- FEATURES kind state. One colossal failure. ••• Let The Poor Walk With Dignity 242424

The political problems come at a time of increasing ••• A Raw, Not-So-New Deal 262626 economic difficulties, leaving the lower-income ••• Showdown At The High Chaparral 292929 group most vulnerable. John Inbaraj writes an open plea to the prime minister, urging him to ensure that ••• Was The Indian Election A Debacle the poor can walk with dignity. For The Left? 323232

Another marginalised group is the Orang Asli. OTHERSOTHERSOTHERS Yogeswaran Subramaniam observes that principles ••• Book Review 303030 such as equality and social justice seem to be missing from a proposed federal land policy for this ••• Subscription Form 373737 group. Meanwhile, Dalbinder Singh Gill takes a look at the High Chaparral residents in Penang who are facing eviction following a controversial land swap. Published by Finally, Prof Bhanoji Rao reviews a new book look- Persatuan Aliran Kesedaran Negara ing at the emergence of India and the Indian com- (ALIRAN)(ALIRAN)(ALIRAN) munities in East Asia. 103, Medan Penaga, 11600 Jelutong, Penang, Malaysia. Tel: (04) 658 5251 Fax: (04) 658 5197 Email (Letters to Editor): ALIRANALIRANALIRAN is a Reform Movement dedicated to Justice, Freedom & Solidarity and listed on the [email protected] roster of the Economic and Social Council of the Email (General): [email protected] United Nations. Founded in 1977, Aliran welcomes Homepage : http://www.aliran.com all Malaysians above 21 to be members. Contact the Hon. Secretary or visit our webpage. Printed by Konway Industries Sdn. Bhd. Plot 78, Lebuhraya Kampung Jawa, 11900 Bayan Lepas, Penang

Aliran Monthly : Vol.29(4) Page 3 has lost the confidence of a failed to hear the public outcry tail all the points canvassed by all majority of the state assembly demanding the dissolution of the parties in their respective submis- members or MPs. Perak State Assembly in order to sions. Armed with such a rea- • Article 16(6) of the Perak Con- solve the constitutional impasse soned decision, the people are not stitution, which is equivalent in Perak? Was it not you who re- kept in the dark as to the reasons to Article 43(4) of the Federal fused to solve the Perak crisis via why Nizar won the suit. Constitution, makes no refer- democratic means namely by go- ence to the mode of determin- ing back to the voters to decide On the other hand, when the ing whether the CM or PM has which party they want to repre- Court of Appeal allowed lost the confidence of the mem- sent them in governing Perak. Zambry’s appeal, only cursory bers. Be that as it may, consti- Sorry, Mr Najib, the problem you grounds were given. Despite a tutionally speaking, there is no are facing now is of your own very profound submission made explicit requirement for a vote making. You are to blame your- by the respective parties and given of no confidence to be passed self. You are hereby ordered to the fact that the appeal dealt with before the CM or PM can be re- vacate your residence with imme- very crucial constitutional points, moved from his office. diate effect.” the unholy haste in making the • The case of Stephen Kalong ruling makes one wonder Ningkan (1966) is no longer a The above scenario is, in my view, whether the judges really read or good law. In Ningkan, the an appropriate illustration to de- appreciated the arguments put Sarawak High Court laid pict the brunt of the Court of forward by the respective parties. down the universally accepted Appeal’s decision, overturning constitutional convention the landmark decision of the We, the lawyers in Nizar’s legal namely the Governor or the learned High Court Judge Dato’ team, have no other choice but to King has no power to dismiss Abdul Aziz Abdul Rahim on 11 accept the court’s decision. But the CM unless a motion of no May 2009. frankly speaking, we wonder if the confidence has been passed by people on the street also share the a state legislature. Legitimacy lost same sentiment – accepting and respecting the court’s decision To add salt to the injury, the King When Dato Abdul Aziz made a without any trepidation. may add: decision allowing all the prayers sought by Nizar in his judicial Whilst the people’s tantrums on “Was it not you who badly review application, the learned our dented judiciary continue wanted such a perverse ruling in High Court judge, to his credit, unabated, the latest perverse de- order to gain a short-term politi- gave a reasoned judgment. cision of the Court of Appeal ag- cal victory? Was it not you who Therein, he discussed in great de- gravates the state of affairs. This

“““ Every legal power must have legal limits; otherwise there is dictatorship .. Power tends to corrupt and absolute power corrupts absolutely.”

Aliran Monthly : Vol.29(4) Page 4 is what happens when our ma- The same happened to the BN tion. Legally speaking, the deci- chinery of justice has lost its le- in Perak. Intoxicated with sion of the Speaker is gitimacy. power, the BN committed a se- unjusticiable. ries of unlawful acts, the glar- When the BN overstays in the po- ing one being the “sodomising” But to keep such a well en- litical arena, the people start ques- of the Perak constitution. Using trenched doctrine would defi- tioning its legitimacy to rule the (read abusing) the court to hide nitely frustrate the BN’s illegal country. Unfortunately, govern- its unlawful acts, the former plan to remain in power in Perak ment agencies in particular those was then asked to kill the con- illegally. Thus, the doctrine involved in the administration of stitutional doctrines and con- needed to be buried once and for justice such as the judiciary, the ventions. The court willingly all. police force and the Attorney submitted to the BN’s nefarious General’s office have also been scheme. Thus for the first time, Being a “serial constitutional duly affected when the BN lost its the apex court demolished the killer”, the BN craves to “kill” legitimacy to rule. In other words doctrine of trias politica (the another constitutional tenet en- these agencies unnecessarily French term of separation of shrined in our constitution, carry the BN’s burden of legiti- powers) when it, without any namely the doctrine of constitu- macy. sense of guilt, nullified the deci- tional monarchy. Again, the BN sion of another branch of the was able to accomplish its mali- The Perak’s legal and political government’s arms i.e the legis- cious design. turmoil reinforces what Raja lative body. Azlan J. (as he then was) said in Hence on 22 May at 3.30pm, the Pengarah Tanah dan Galian, The doctrine of separation of three judges of the Court of Ap- Wilayah Persekutuan v Sri powers recognises that the peal officially pronounced and Lempah Enterprise Sdn Bhd ( Speaker of the legislative body declared the demise of constitu- 1979 ) 1 MLJ 135:- is the final arbiter as far as the tional monarchy in Malaysia. internal affairs of the State Leg- When constitutional monarchy “Every legal power must have le- islative Assembly are concerned. ends, constitutional anarchy gal limits;otherwise there is dic- There are at least five judgments definitely begins. Welcome an- tatorship .. Power tends to corrupt of the Malaysian courts, given archy! q and absolute power corrupts ab- by judges of impeccable integ- solutely.” rity, which in unison held that any decision by the Speaker or Mohamed Hanipa Maidin Since day one, the BN has in- legislative body would not be is the Pas legal adviser dulged in unlawful activities as amenable to judicial interven- far as the Perak crisis is concerned. To cover its unlawful acts, it has to resort to other unlawful measures. The best way to illus- trate what BN has done in Perak is by citing the following example:

When A being a Muslim commits a sinful act by drinking liquor , the intoxication leads him to commit adultery, which is another sinful act. In order to hide his treach- erous act, he subsequently kills the woman he cohabited with, fear- ing that the latter may become a threat to him.

Aliran Monthly : Vol.29(4) Page 5 COVER STORY The Perak Crisis: Aliran Demands Justice and a Return to the People’s Mandate by P Ramakrishnan

We earnestly hope that the Chief Justice will accede Let nine-judge Federal Court to this request in the interest of justice and fair play. panel hear Nizar’s objection What is at stake is the very foundation of justice 25 April 2009 itself.

What is to be determined by the Federal Court has The request by the undemocratically ousted Perak far reaching consequences for our democratic sys- menteri besar, Datuk Seri Mohammad Nizar tem of governance. It involves the fate of a demo- Jamaluddin, for a nine-man Federal Court bench to cratically elected state government as reflected by hear his objection to Datuk Zambry Abdul Kadir’s the popular will of the people. When 53 per cent of reliance on Article 63 of the Perak Constitution to Perakians have spoken authoritatively through the determine who is the rightful menteri besar of the ballot box to determine who should govern the State state is a fair one. of Perak, can that mandate be nullified through the

Aliran Monthly : Vol.29(4) Page 6 unethical conduct of three dubious characters who huge amount of money because it is not their money. have betrayed the trust of the electorate? Two of them It is this mental attitude that propels them to act are facing trials in a court of law after they have carelessly. been charged with corruption, and this makes it rep- rehensible that these totally discredited characters It is no surprise that thinking people should ask should wield so much power now to frustrate the why this silly reason to auction off the new Toyota electoral process. Camry cars when they are at the disposal of the Umno government and in very good condition? This very grave issue is so crucial that it is impera- Surely they can be used for the next five or six years tive to have the collective wisdom of nine judges to without any problem and more importantly with- ponder over it so that justice will be better served. out incurring any loss. Is it because the Pakatan Ex- ecutive Councillors had sat in them that the Umno We also agree that a new bench of judges should people find it difficult to use the same cars? Is it hear this case so that Malaysians will be inclined to because their pride has to be satisfied at all costs? accept their decision. Malaysians look forward to the inclusion of the newly elevated judges – espe- But the Umno MB tells us that it is a matter of na- cially Sri Ram – so that the issue will be judged fairly tional pride that they should buy local cars. and justly. What national pride is he talking about? Pride and dignity will be his to claim if he had been chosen by Call off auction: Perakians with the legitimate mandate of the people Don’t squander taxpayers’ money to form the government of the day. He cannot talk 28 April 2009 about pride and dignity after toppling the rightful government through the help of corrupt politicians and unsavoury characters. He is seen as having Like all thinking Malaysians, Aliran is very upset usurped the position of the MB through that Datuk Seri Dr Zambry Abdul Kadir, the Umno dishonourable means and therefore he forfeits the Mentri Besar of Perak, is showing scant respect for right to any such claim. tax-payers’ hard-earned money. If he was the peoples’ Menteri Besar, then perhaps he would have The Terengganu government was the first to have acted more prudently with the interest of the people bought Mercedes Benz last year discarding the Pro- at heart. ton Perdana for cost effective reasons prior to the purchase of the Toyota Camry cars by the Pakatan His decision to auction off 16 Toyota Camry cars government. Zambry did not speak of national pride bought by the peoples’ government in order to buy then neither did he chide his Umno counterpart for Proton Perdana cars for himself and his Executive his preference for foreign cars! Was it because the Councillors is foolish and puerile. It does not make sense to auction off the newly acquired Toyota Camry cars incurring a substantial loss of money for the taxpayers. This is senseless squandering of wealth and defies logic.

During this economic crisis one would have expected him to act wisely but unfortunately he is trapped in the mindset of Umno/BN noted for their extrava- gance and opulence. His decision would result in the unnecessary loss of hun- dreds of thousands of ringgit but he seems to have no qualms in wasting this

Aliran Monthly : Vol.29(4) Page 7 huge maintenance cost incurred by the local cars arrogance that has no place in this sacred institu- that persuaded him to go along with the decision of tion. the Terengganu government? Nobody pressured the Terengganu government to auction off the Mercedes There was no need to have pushed for this sitting of Benz in the interest of national pride. the assembly when the status and legitimacy of Zambry as Perak Menteri Besar is still in question. The hypocrisy displayed in the car episode is nau- This very crucial issue had not been legally settled seating. It will rankle and smoulder for eternity until and yet the Umno assemblymen could not wait for this injustice is rectified. Rest assured that Perakians the resolution of the issue. They are bent on taking will long remember this hypocrisy and they will over the state assembly by any means – mostly by punish Umno without fail. The rallying cry for the foul means. next general election will be, “Remember Perak – Remember the injustice!” The sergeant-at-arms has no authority to disobey the orders of the Speaker. It is not their business to take sides nor to decide whether the instruction given Lawlessness and is right or other wise. They don’t seem to know their the Perak Assembly place or understand their role. 7 May 2009 The police have acted in a diabolical manner and did not act professionally and in an impartial man- Chaos has descended upon Ipoh and the rule of ner as they are required to do so. They are seen to be law has been savaged by the brutish behaviour of acting pro-Barisan Nasional and in a high-handed Umno Perak State Assemblymen. What we have fashion in arresting so many people who had not witnessed today will condemn us for ever for reduc- posed any serious threat to the security of the na- ing a much respected institution into the law of the tion. jungle. Decorum was not observed and the rule of law was totally discarded. There was no entry into the 500-meter zone to keep people away from the vicinity of the assembly. They By refusing to be bound by the rules of the Assem- have made it clear that anyone breaching this court bly, the Umno Assemblymen and sergeant-at-arms order will be arrested. That being the case how did have demeaned democracy and the democratic pro- Datuk R Ganesan gain access into the assembly to cess. The same conduct that arrogantly discarded be illegally “elected” as the Speaker of the assem- the mandate of the Perakians in the power grab en- bly? Ganesan was even prepared to use force to grab gineered by Datuk Seri Najib Abdul Razak is at the Speaker’s chair proving that he is prone to vio- play once again in the state assembly ignoring the lence. This is clearly conduct unbecoming of some- sanctity of the assembly and displaying the very one aspiring to be the Speaker of the Assembly.

On what basis did the sergeant-at-arms and the police forcefully and physically act to evict the lawful Speaker of the As- sembly in this outrageous manner? Isn’t the Assembly out of bounds for the police to walk in and act in this atrocious way?

It appears that the police are also in league with the Umno assemblymen to do their bidding in helping the Umno assemblymen to take control of the assembly.

Aliran Monthly : Vol.29(4) Page 8 It is not even clear that the Perak State Assembly had been convened legally and legitimately for the Umno motions to be tabled and adopted. In a rough shod manner they had bulldozed their way to secure their position with scant respect for formal procedure and proto- col.

Law and order has completely broken down in the Perak State Assembly and in this state of lawlessness Umno has taken charge of the Perak State Assem- bly. This is no honourable take over of the august body. It is a shameful way of acquiring power through brute force. of Jean de La Bruyere: The duty of a judge is to render justice; their profession is to discern it. There are some Najib must be held responsible for this pandemo- who know their duty and who practice their profession nium. He had created this situation in bringing about the change of government that has resulted in Justice Abdul Aziz certainly falls into this category. the bedlam that we had witnessed in the state as- By his rare courage and wisdom Justice Abdul Aziz sembly. has done the judiciary proud in living up to his oath of office. If only the earnest appeals and prayers for the dissolution of the state assembly had been heeded we The significance of this judgment is that Nizar has would have had a people’s government to govern been the legitimate Menteri Besar at all material Perak. times and that he had never vacated his position.

This injustice will be rectified at the 13th general It also meant that there was no basis for appointing election when the rallying cry will be, “Remember Zambry as MB and that there were no grounds to Perak – Remember the injustice.” presume that Nizar had resigned or had automati- cally vacated his office to pave the way for the appointment of Zambry to succeed him as MB. The people’s decision is the only option left In other words, it has been made clear by the court decision that Zambry was never the MB of Perak at 12 May 2009 any material time and that he and his Councillors were indeed imposters.

Aliran hails the judgment of the Kuala Lumpur High As such, whatever that they have done or executed Court and salutes Justice Datuk Abdul Aziz Abdul in their assumed capacity becomes a matter of con- Rahim for his honesty and integrity in delivering a tention. Legally this may have to be unravelled. If judgment that does justice to his profession. they had been receiving salaries and various allow- ances as MB and Executive Council Members, all Unlike the previous judgments on various issues this must be refunded because they were not en- pertaining to and contributing to the Perak political titled to this. Naturally they will have to vacate their crisis, which were totally disappointing and appall- offices immediately. ing, this particular judgment has done credit to the judiciary. Last night’s decision by the MB and his Exco to sus- pend state secretary Abdul Rahman Hashim and Justice Abdul Aziz brings to mind the observation state legal advisor Ahmad Kamal Shahid is only

Aliran Monthly : Vol.29(4) Page 9 judge – Datuk Ramly Ali - of the Court of Appeal confirms why the law is an ass.

On 11 May 2009 High Court Justice Abdul Aziz Abdul Rahim in a well-ar- gued judgment declared that Datuk Seri Nizar was the duly appointed Menteri Besar at all material times and that Datuk Seri Dr Zambry was never the MB of Perak at any material time. In other words, Zambry has no business to be or pretend to be the MB of Perak.

The High Court decision had positively removed all doubts and confusion as to logical. As civil servants they have acted in an “un- who was the rightful and legitimate MB of Perak. civilized” and partisan manner and as political func- tionaries on behalf of Umno. Their conduct has tar- The next day, 12 May 2009, Ramly muddied the nished the civil service which is expected to serve water by granting the stay order to the High Court the government of the day loyally and remain above decision without any conditions. This decision con- politics. founded the nation and left everyone dumbfounded.

Now we will never know whether Abdul Rahman As a result of this absurd decision of Ramly, the would have welcomed Nizar and and his Exco with position of the genuine MB has been undermined as much exuberance as he had displayed in locking and has left him in a limbo unable to discharge his up the doors to prevent access and then chasing duties and serve the needs of Perakians. them away from their rooms in such high-handed fashion with the help of the police! On the other hand, the stay order seems to have given the man who never was the MB of Perak at any time Let’s not forget the two issues that had brought whatsoever a second lease of life to occupy the MB’s about the chaos and uncertainty: the unethical chair. crossovers and the unfortunate refusal to dissolve the Perak State Assembly. These two issues invali- This ridiculous situation has bewildered every dated the mandate of the Perakians and robbed them thinking Malaysian into a state of utter confusion. of their choice of government. If Ramly had granted a conditional order restrain- The only sane and sensible thing to undo the dam- ing both Nizar and Zambry from acting as MB in age and bring calm and stability to Perak is to go order to enable Nizar’s suit seeking to set aside this back to the people to settle this issue once and for order to be heard and decided then such a decision all. Let the people decisively decide who should form would have been acceptable. the government. There is no other option. But this order had made a mockery of the law and shattered the people’s confidence in our judiciary. Solution lies in the dissolution This is the reason why people have so little trust in of the Perak Assembly the system of justice. This is why people despair 16 May 2009 when decisions are dished out by our courts.

We must be realistic and realise that ultimately the There must have been a valid reason for stating that debacle and the dilemma confronting Perakians the law is an ass. Now we understand why it is so. cannot be decided by the courts. The courts would The open-handed stay order granted by a single only delay the outcome and prolong the uncertain-

Aliran Monthly : Vol.29(4) Page 10 ties and provoke further political reactions endan- The other personage who can definitely and inci- gering the peace and harmony enjoyed by the people sively resolve the political turmoil and the upheaval for the last one year. in Perak is His Royal Highness, the Sultan of Perak. The sultan by now must know how angry and up- It is important to realise that this problem cannot be set his subjects are that three unscrupulous politi- solved by the courts. Only two people can bring re- cians have subverted democracy and overturned a lief to this dangerous situation. people’s government by their unbecoming conduct. They have frustrated a duly elected government of One of them is the Prime Minister who was impli- the people and made nonsense of the democratic cated in causing this problem in Perak. He has stated will of the people. that he wants to feel the pulse of the people so that he could be the people’s PM. He must know what His Royal Highness must take cognisance of the the feelings on the ground is. sound and persuasive judgment of the High Court on 11 May 2009. The Senate President, the Chairman of Suhakam, MCA, Gerakan, eminent lawyers, concerned citizens, His Royal Highness must surely be aware that more civil society and a host of prominent and caring in- suits filed in the courts will only delay and contrib- dividuals have called for the dissolution of the Perak ute to more frustrations; they need not necessarily State Assembly to overcome the present political mean more justice for this politically unresolved stalemate in Perak. matter.

He should heed these feelings and the demands of His Royal Highness must surely be aware that his the people and make a second trip to the palace and subjects want a political settlement and it is they plead with His Royal Highness, the Sultan of Perak, who must decide who should form their state gov- to dissolve the Perak State Assembly. He cannot ig- ernment. nore this groundswell any longer if he lays any claim in wanting to be the people’s PM. He must undo the To enable the Perakians to solve this problem that present mess in Perak and restore stability in that has been festering like a sore wound for more than state. He must rise above politics and act as a states- three months, please dissolve the Perak State As- man in the interest of the country. This is one duty sembly. There is no other way – no other solution. that he must perform as soon as possible with all sincerity. P Ramakrishnan is President of Aliran

Aliran Monthly : Vol.29(4) Page 11 PERAK CRISIS Dissolve Perak State Assembly

What is at stake do not understand or accept this principle have no in the Perak crisis place in government.

by Tengku Razaleigh Hamzah Some issues can be solved by a court of law, but the Perak crisis is not one of them. The back and forth he Perak crisis is a tragic comedy of errors events recently demonstrate this fact abundantly. and bad political judgment that reflects a The Perak crisis cannot be solved by a decision of TTT failure of political leadership. As it contin- the Court because it is at heart a political rather than ues to spin out of control, it damages our a constitutional problem. There is really no doubt democratic system of governance. To all intents and about what the Constitution says. What is now un- purposes, one of our most prosperous and devel- clear as a result of an ugly series of manoeuvres is oped states has been reduced to a failed state, with a whether Perak has a legitimate government, and possibly illegal state government in place. This is a there is only one way to resolve that issue. Perhaps condition that can propagate outwards to the rest of our political leadership has not understood how the country. important it is that the people’s voice must prevail, and be seen to prevail, in the choice of their govern- I stated at the beginning of this crisis that by our ment. Constitution, a change of government can only be brought about by democratic means, which is to say, The only solution to the Perak crisis now is for the through the ballot box or through a formal vote of State Legislative Assembly to be dissolved and free confidence in the elected Legislative Assembly. These and fair elections held. At this stage there is no other are the constitutionally mandated means by which way to restore both public confidence and constitu- the people decide on their government. Any other tional legality to the Perak state government, and by means of changing the government is unconstitu- extension to our entire system of government. Our tional and undemocratic, and subverts the basis survival as a democratic and constitutional monar- upon which we are a civilised society. chy depends on our acceptance of the judgment of

We now have reason to fear the loss of the people’s confidence in the Constitution, in democracy and in our constitutional monarchy. Re- sponsible political leadership must support rather than destroy the confidence of the people in these prac- tices and institutions. In particular, powers reserved for the Legislative Assembly, which represents the sovereign will of the people, cannot be taken away under any circumstances by anyone. This founda- tional constitutional principle has been affirmed by the Court. We are all sworn to uphold it. Those who

Aliran Monthly : Vol.29(4) Page 12 the people as expressed in free and fair elections. said these included Legislative Assembly Speaker Any attempt to circumvent that judgment betrays V. Sivakumar applying his powers, the Sultan exer- the basic principles and values upon which our na- cising his prerogative and the three independent tion and incidentally, Umno itself, stand. I appeal assemblymen aligning themselves to the Barisan. for wisdom and a broader concern for the wellbeing of our country. He said the Senate would swear in six new Sena- tors today but Perak to date had not been able to Tengku Razaleigh Hamzah is the nominate anyone for the Senate because of the po- Member of Parliament for Gua Musang litical impasse.

Go back to the people, Soure: thestar.com.my, 6 May says senate head The Perak incident

ETALING JAYA: The political situation in by Abdul Talib Othman PPP Perak has reached a stage where it may be time to go back to the people, said Dewan he Perak incident was raised and discussed Negara president Tan Sri Dr Abdul Hamid TT at Suhakam’s monthly meeting on 11 May Pawanteh. TTT 2009.

Dr Abdul Hamid, who has been observing the de- It appears to us that during the incident that oc- velopment in Perak with concern, said ad hoc ac- curred in the Perak State Legislative Assembly on 7 tions on the part of individuals and political parties May 2009, the police and the civil service acted in in Perak had not solved the impasse. concert with the government that has assumed power in controversial circumstances, showing com- “Rightly or wrongly, the series of ad hoc actions plete disregard for human rights. Governments may have only made things more complex and convo- change but those who serve in the police and ad- luted. The best thing is for the powers-that-be to de- ministration must remain loyal to the wider interest cide on the best course of action under the circum- and respect human rights rather than the narrow stances,” he said. interest of individuals who form the government of the day. He said that in a democracy, when the arithmetic shows that one has the majority, then the problem is When the elected members of the Assembly met and solved. challenged each other in the august House, the police were busily engaged in “maintaining public “In this case, the arithmetic is right but the problem order”. Outside, passive demonstrators dressed in is still there. Either you go on like this till the next black to mourn the violation of their rights to as- general election or you go back to the people,” he semble peacefully, were particularly provoked and added. manhandled. The Dewan proceeded even while the court was still to decide on the following Monday, “The application of individual and specific provi- four days later, who was the legitimate Menteri sions, be it under the Perak Constitution, the Stand- Besar. ing Orders or the Federal laws, have not brought about a solution. The pre-emptive proceedings, the motion to sack the legitimate Speaker and his removal from the House “That is why I think it is time to address the funda- and the action of the police force have caused much mental issue. Maybe it is time to go back to the concern to the people at large. It somewhat makes people.” us wonder whether service to the people is subordi- nate to service to political interests. The decision of The Senate president pointed out that all kinds of the Court declaring Dato’ Seri Mohammed Nizar options had been exercised but had not worked. He Jamaluddin as the rightful Menteri Besar of Perak

Aliran Monthly : Vol.29(4) Page 13 has further complicated matters. any superiority over an Arab; also a white has no superiority over black nor a black has any superior- Malaysia is a democratic country based on human ity over white except by piety and good action…… rights and the rule of law. The political disturbances This, perhaps, will be a good basis for “1 Malay- in Perak and what transpired in the Dewan on 7 sia”. May would no doubt pose a dark shadow over our efforts to promote democracy and human rights in “Human rights for all” Malaysia. Tan Sri Abdul Talib Othman is chairman Article 21 of the Universal Declaration of Human of the Human Rights Commission of Malaysia Rights 1948 provides that the will of the people shall (Suhakam)(Suhakam)(Suhakam) be the basis of the authority of the government.

Judging from the events following the appointment Go back to the People of Datuk Seri Zambry Abdul Kadir as Menteri Besar, the incident in the Perak Assembly sitting on 7 May enang Gerakan Chairman Dato’ Dr Teng and the decision of the Court declaring Dato’ Seri Hock Nan in a statement on 13 May urged Mohammed Nizar as the rightful Menteri Besar, it PPP Perak BN Chairman and Menteri Besar, is very unlikely that the Perak issue will be resolved Datuk Seri Zambry Abdul Kadir, to imme- unless power is given back to the people. Courts diately request for dissolution of the Perak State As- action will not necessarily resolve the political situ- sembly and pave the way for fresh state elections. ation in Perak. As Dewan Negara President Tan Sri This will allow the people of Perak to decide on who Dr. Abdul Hamid Pawanchik said, “the political ought to lead them. situation in Perak has reached a stage that required the people to choose again.” “Prime Minister Datuk Seri Najib Tun Razak said yesterday that it was up to Zambry to decide the Perhaps the time has come for the people of Perak to next course of action. I strongly feel that Perakians be given the opportunity to exercise their right to must have the final say in this matter because every choose again the Government of their choice, which Government needs legitimacy, and the doubts can is a basic human right. Only a stable government only be cleared via a re-election,” said Dr. Teng, will be able to ensure the right to peace and devel- adding that Zambry should stop pursuing courts opment. proceedings on the legitimacy of the Perak Menteri Besar. Two of the greatest gifts endowed by God to His creatures are the sense of sight and hearing. With- out these there is no learning and progress. It is very encouraging that the Government under the leadership of YAB Dato’ Sri Mohd. Najib Tun Razak is prepared to listen to dissenting views.

Hopefully the Government will also tolerate and ap- preciate peaceful public demonstration against un- popular policies and actions.

Human rights transcend race, status and political ranks. No person has more rights than the next one. Muslims are aware of this fundamental rights as espoused by Prophet Muhammad in his last ser- mon – …All mankind is from Adam and Eve, an Arab has no superiority over a non-Arab nor a non-Arab has

Aliran Monthly : Vol.29(4) Page 14 Dr Teng also stressed that by giving back the power “While the Barisan Nasional leadership maintains of choosing the next Government to the people who that our focus now is on the economy, how can we obviously want a say in the matter, the BN can once do so effectively if the Perak situation keeps on wors- again show that it upholds the principle of democ- ening and generating negative perception and reac- racy and that it has the best interest of the people at tion from the people?” Teng asked. heart. He drew attention to what the Prime Minister re- “Democracy is about elections and choice. This has cently wrote in his blog about the values of accep- been the way since Greek times and I don’t think it tance and integrity in his eight values toward has changed. There are no exceptions to this, so we achieving 1Malaysia. “Therefore, for1Malaysia to too must uphold these values to reinforce our com- be achieved, the values of acceptance and integrity mitments to the principles of democracy,” Dr Teng must be found in the State Government of Perak, said. whether it is governed by Barisan Nasional or otherwise.” “The political situation in Perak has come to a point – milky and uncertain – that it is only right to let the 12 May 2009 people choose the government they want,” Dr Teng gerakan.org.my added.

13 May 2009 The Perak State Assembly gerakan.org.my sitting of 7 May

by Thomas Philips and Hermen Shastri Legal recourse not the answer to Perak Situation he Council of Churches of Malaysia (CCM) is deeply troubled and concerned at the erakan secretary-general Teng Chang TTT events that unfolded at the Perak State As- Yeow urged the Barisan Nasional leader- sembly sitting on 7 May. GGG ship to explore and seek political solutions to the Perak situation, rather than persuing The unruly scenes, the scuffles and the removal of only legal recourse. the Speaker of the House by force have all violated the dignity of the State Assembly and made a mock- Political options to be considered may include al- ery of basic democratic principles that citizens have lowing the minority (28-seats) Pakatan Rakyat gov- come to expect from a nation that champions hu- ernment to continue functioning and going for the man rights. next legislative assembly seating, or even concurring with the proposal to dissolve the Perak Assembly and let the electorate decide on the government of their choice.

Under the legal process, BN no doubt has the right to appeal to another higher court for a review of the decision of the Kuala Lumpur High Court on the legitimacy of the Menteri Besar of Perak. However, Barisan Nasional leadership should consider the possible subsequent impasse and political impact on the entire nation, he said.

Aliran Monthly : Vol.29(4) Page 15 The power and authority of the Speaker have been wicked will sweep them away, because they refuse undermined. to do what is just” (Proverbs 21: 3, 7).

The police had overstepped their authority by the Rev Dr Thomas Philips is president of the CCM harassment of duly elected representatives, and of while Rev Dr Hermen Shastri is general secretary peaceful protesters exercising their rights of free ex- pression guaranteed under the constitution. The police must remain above politics to have integrity Perak’s DIY state government and the confidence of the people. by Angeline Loh The CCM realises that the political crisis in Perak is a great worry to all just and peace-loving citizens of he Barisan Nasional has much to answer our country. for the state of affairs in Perak. The break- TTT down of the constitutional and democratic The CCM feels that it is time for the government to process in that state is all too evident from uphold its commitment to building a democratic and the controversial imposition of a BN government on peaceful Malaysia by returning power to the people the Perak electorate. A government, a majority of the to decide by whom and how they should be gov- electorate appear to have no confidence in as seen erned. by their flocking to support the so-called de facto Pakatan Rakyat state government led by Nizar To this end, the CCM joins civil society in calling Jamaluddin. the Sultan to exercise his sovereign power by calling for fresh elections in the state. The unpopularity of the Zambry-Umno administration comes as no surprise amidst the furore over its This is the only way to resolve the current political un-ashamed failure to adhere to constitutional pro- impasse. cedure and law added to the blatant disregard for democracy and the democratic process. Are the elec- As Christians, we believe that justice will have its torate expected to respect a government imposed on day, because God expects that the nation is gov- them? erned by principles of righteousness and justice. The retrogressive attitude of the Zambry adminis- As churches pray for the speedy resolution of the tration smacks of feudalism, taking the state several political crisis in Perak, we remember the words of centuries back in time when the sultanates ruled the Bible: their kingdoms with absolute power. The chaos and near anarchy of the situation is deeply embarrass- “To do righteousness and justice is more acceptable ing to Perakians whose voices are loud but unheard to the Lord than sacrifice….The violence of the by these feudal lords.

How legitimate is the current State government? The rough and procedure-less ouster of the former elected government - through the proclamation of a presumed loss of majority, when three State Assembly members declared themselves as ‘independents’ - can hardly be seen as reasonable justification for assuming a mandate to govern. The vital ingredient of a people-granted mandate is missing from the whole stew.

Whilst the see-sawing continues between courts in a needless legal battle arising from

Aliran Monthly : Vol.29(4) Page 16 private oaths in a corner, doesn’t matter where, even a toilet would do, without any need for proper constitutional or legal procedure.

Amazingly, the police force and other security forces in the country seem willing to support these hooligan emperors, doing their bidding without question, mind or conscience. If this is so, not only the state of Perak , but the whole country has returned to the dinosaur era, as the current federal administration ap- parently sits in silent approval of this retrogression. the lack of any recognised procedure in the ouster of the elected Pakatan Rakyat administration, the fact Unless sanity, justice and democracy is restored, we remains that any apparent legal rubber stamping of are in danger of being seen as Neanderthals under the un-elected BN state government will not neces- the illusion of being a civilised state but not realising sarily cause a shift in the affections of the Perak elec- how far from it we are. torate. Angeline Loh holds an LLM International Law and This BN government - which bulldozed itself into writes regularly on legal affairs and human rights position and DIY-ed its mandate by strangely taking a private oath, not witnessed or approved by the public, in a small corner of a room and locking the Ethical, moral framework then legitimate Speaker of the State Assembly in a for Perak crisis needed store-room to prevent him from presiding in the State Assembly session - look like amateurs pretending by Ronald Benjamin to be professionals. he constitutional crisis in Perak had been Their crude and rude methods of seizing power, still commented on and interpreted through pending finalisation of legitimacy, will condemn TTT various legal dimensions. I believe that a them to amateurism in perpetuity. No amount of durable and honourable solution to this im- claims to higher literacy, or trappings of titles, passe lies in the ethical and moral framework, which wealth or power will change the fact of the origin of the learned authorities should uphold if the right such behavior – hooliganism. precedence is to be created for our country. Here are a few ethical and moral principles that need to be Legitimising such amateur DIY methods of power taken into account to resolve this crisis in an grabbing will only set a precedent for a domino ef- honourable way. fect of the breakdown of law, order and justice in this country. That would be a pity as there is one The affirmation of people’s sovereinty last chance to regain any kind of respectability by this boorish administration – by gracefully admit- The rakyat’s sovereignty in electing and dismissing ting that they do not have the peoples’ mandate to their leaders through the election process should be govern, and by seeking one through election by the upheld. It should not be subjugated to ceremonial people. powers or political manipulation, reflected in ethnic emotions. It is sad that such manipulation is Legitimising such political tactics would appear to still used for political expediency. give the green light to replace all established institutions in the country by similar methods i.e. taking Ethical approach to people’s representation

Aliran Monthly : Vol.29(4) Page 17 It is vital to affirm the importance of As- sembly members and Parliamentarians to choose the front door if they wish to de- fect to another party, which means they should go back to their electorate for a fresh mandate. Legitimising a backdoor approach through clever legal arguments only creates a political culture of betrayal, which could cause instability to the nation in the long run.

Affirming the separation of powers

The learned authorities should affirm the separation of powers of the legislature, judiciary and executive. There has been concern rakyat. among discerning Malaysians on the usurpation of power of these independent pillars of democracy I think if the crisis is allowed to drag on indefinitely for political expediency, which brings back memo- with no end in sight, very soon everybody will just ries of past authoritarian rule. wear out. We just can’t go on forever.

Affirming right methods and procedures Just imagine what transpired within the last few days. First we got the news that the High Court de- Finally, it is vital to affirm the right principles to be clared Datuk Seri Mohd Nizar Jamaluddin as the converted into procedures and methods for the re- rightful Menteri Besar of Perak. Then came the next moval of a Menteri Besar or Prime Minister. Is it day with even bigger surprise for everyone when ethical for an Assembly member to go missing and we learned that Datuk Seri Dr Zambry Abdul Kadir then play a part in removing a legitimate govern- got a stay of execution pending his appeal from an- ment and its leader or is it right to attend a legiti- other court and thus claiming himself as the lawful mate assembly and remove a leader? MB of Perak.

In conclusion, it is vital for learned authorities to The question is how many MBs do the people of affirm the key principles of democracy with legal Perak need to run the state? We are not sure if a axioms to resolve the present constitutional crisis lawful government even exists at all. in Perak for the betterment of this country. That will determine the future direction of democratic values I think that it is a waste of good time and money for in this country. BN and PR to indulge in appeals and counter appeals by resorting to the courts to dispense justice. Ronald Benjamin is a writer based in Ipoh In my opinion, these clowning acts and sandiwara must be put to a full stop. Why can’t both parties go and ‘mengadap’ the Sultan of Perak and request for Have a snap election and solve the dissolution of the State Assembly? the problems in Perak Both sides must be brave enough to face the people’s by Dato’Tunku Yusuf Jewa court when a snap election is called. BN and PR politicians must stop behaving like kids. Let the citi- ooking at the antics and the goings-on be- zens of Perak decide which party they want and tween the BN and PR politicians in the sil- accept the government of their own choice. LLL ver state of Perak, I can see that the situation has now esclated into a crisis that has Dato’Tunku Yusuf Jewa is regular a commentator caused a lot of concern and confusion among the from Kota Bahru

Aliran Monthly : Vol.29(4) Page 18 PERAK CRISIS Mainstream media’s role in legitimising the Perak power grab “A lie told often enough becomes the truth” - Lenin by Anil Netto

ne of the less discussed OO aspects of the Perak OOO power grab has been the role of the mainstream media in trying to legitimise the BN takeover of the state.

A casual look at the media reporting may not reveal anything amiss apart from the usual lack of critical questioning of the power grab in Perak. But the more obser- vant reader will notice the choice of terminology at critical moments of the power grab.

A couple of examples will illus- seek His Royal Highness’ con- Besar, had said that he would trate this. While the question of sent to dissolve the state as- submit a letter and related who the real Menteri Besar was sembly.” documents to the Perak Sultan being disputed and lay before the on Tuesday. courts, Bernama was in no doubt Zambry said this in a one-page in its reporting. Note especially the statement faxed to Bernama Notice how Zambry is referred to first para below: here tonight following as Menteri Besar Datuk Dr Mohammad Nizar’s statement Zambry Abdul Kadir while Nizar KUALA LUMPUR, March 8 today that he would seek to is described as “the former Perak (Bernama) — Datuk Seri meet Sultan Azlan Shah to Menteri Besar”. Mohammad Nizar present three resolutions, in- Jamaluddin has no right to cluding calling for the disso- Never mind that the emergency seek consent from the Perak lution of the state assembly, sitting of the Perak State Assem- Sultan, Sultan Azlan Shah, to passed during an emergency bly under the Democracy Tree five dissolve the Perak State Assem- state assembly sitting held by days earlier - with BN assembly bly, said Menteri Besar Datuk Pakatan Rakyat state assem- members missing - had called for Dr Zambry Abdul Kadir. blymen under a tree in Ipoh the dissolution of the assembly last Tuesday. and expressed support for Nizar “Based on Article 16(6) of the as the MB. Never mind that only a Perak State Constitution, only Mohammad Nizar, who is also successful vote of no-confidence the Menteri Besar has the right Pasir Panjang assemblyman in the State Assembly could re- to appear before the Sultan to and the former Perak Menteri move Nizar as Mentri Besar.

Aliran Monthly : Vol.29(4) Page 19 Zambry as the MB and Nizar as assemblymen and three Inde- the former MB. pendent assemblymen, sacked Sivakumar, replacing him with A similar media endorsement Ganesan. came immediately after Speaker A Sivakumar was outrageously Never mind that the State As- dragged from his seat in the sembly had not yet been de- Dewan by plainclothes officers clared open; never mind that the and then bundled away and Speaker had ordered several dumped in a changing room state assembly members out, nearby for more than an hour. only to find his microphone switched off. No questions The Star, that self-styled “People’s asked about the controversial Paper”, wasted no time in endors- circumstances in which ing BN’s claim that its candidate Ganesan was sworn in and the Ganesan was now the new sergeant-at-arms’ refusal to lis- Speaker. ten to Speaker Sivakumar’s in- This continued reference to structions. Zambry as the Menteri Besar and Friday May 8, 2009 Nizar as the “former Mentri Showdown over Speaker’s All that appeared to matter to The Besar” in the aftermath of the seat in Perak Star was legitimising the BN’s sec- power grab and even before the ond power grab, this time in the courts had decided the issue ap- Chaos at Perak Assembly sit- Perak State Assembly, through the peared to have one goal in mind: ting paper endorsing Ganesan’s to subtly legitimise Zambry as the Battleground Ipoh usurping of Speaker Sivakumar’s MB while casting Nizar as a “has position. been”. IPOH: It was one of the ugliest scenes in Malaysian state as- Ever since then, both Nizar and Similarly, after Zambry had sembly history. There were Sivakumar have been referred to grabbed power, Nizar’s state exco shouting wars, furious shov- as “former MB” and “former team were all referred to as ing, assemblymen standing on Speaker” even though both have “former state exco members”. tables and even one grabbing taken the matter to court and the Speaker’s microphone. The those positions remain at best dis- This continued right until the dramatic showdown between puted. point the High Court declared Barisan Nasional and Nizar the rightful MB. By then the Pakatan Rakyat assemblymen The way the mainstream media mainstream media had to make a was to wrest control of the reported the power grab - unques- 360 degree somersault to change Speaker’s Chair. tioningly and uncritically - came the titles and terminology of the as no surprise to readers. main protagonists. In the end, Barisan succeeded in its “fight” to elect former The trend worldwide is for the But the media gymnastics re- Sungkai assemblyman Datuk print media to lose readers to sumed after Zambry was granted R. Ganesan as the new online media. The mainstream a stay by the Court of Appeal even Speaker, after Tronoh assem- media in Malaysia are only has- though many wondered how a blyman V. Sivakumar was tening their demise by their lop- “stay” could affect the High forcibly removed from the sided reporting and uncritical Court’s declaration of Nizar as the Chair by several plainclothes support of the BN. Is it any won- rightful MB. policemen at 2.45pm. der then that many of these media outfits continue to lose more The media, however, had no The House, by majority and more readers to the online doubts, once again labelling achieved through Barisan’s 28 media? q

Aliran Monthly : Vol.29(4) Page 20 PERAK CRISIS One Perak! Perak has recorded a series of “unique achievements” in the constitutional crisis facing the state, making it OnePerak indeed. by Martin Jalleh

ne man’s catchphrase of reform – “the culture of OOO change” – has been fully exposed for what it really is – political chicanery and a potent concoction of 4Cs – Corrup- tion, Coercion, Crossovers and Coups. One sees this in Perak, where the right of the people of Perak to determine their State Gov- ernment has been stolen in broad daylight by the “people’s Prime Minister”.

One haughty political party in Bolehland, humiliated in the last general election and by a series of by-election losses, hangs on to One — hand-in-glove with its po- Perak one! power desperately by hijacking a litical (pay)master, the one-sided state government by high- Election Commission (the sup- One interfering and intimidating handed, hideous and heinous posed paragon of democracy) — show of force by the police force, means such as money politics, panders and plays to the tune and assisted by Umno’s thugs and the mysterious disappearances, mobs remains pliant to Umno and its spineless State Secretary, is bra- and manipulative manoeuvrings power grabbing to prevent the zenly displayed to prevent the of the nation’s democratic insti- people of Perak from being the one Menteri Besar (MB) and the tutions. paramount arbitrator to overcome Pakatan Rakyat Assembly mem- the State’s political deadlock. bers from entering the State As- One fraudulent State Government sembly. They who pathetically is formed in Perak by the cross- One farcical State Government – fail to arrest the rising crime rate overs of two assembly members made up of an overwhelming 27 in the country rise to every occa- charged with corruption, one as- Umno assembly members, one sion to protect Umno’s “internal sembly woman who compro- MCA assembly member and three security”. mised and reduced the price of de- ‘independent’ hoppers — is por- mocracy to cash and Camry - a trayed as a unique and strong rep- One “small boy” in the Prime threesome who made themselves resentation of multiracial unity Minister’s Department calls the “independent” of the will of the and governance! The people are Speaker a “boy speaker” The lat- people - and the double-crossing expected to believe that the most ter has in fact been amongst the over of one Umno assembly mem- divisive force, led by dubious and very few who are man enough to ber. devious characters, will make stand up to the taunts, threats,

Aliran Monthly : Vol.29(4) Page 21 tricks of Umno and refuse the tempting offers of the powers-that- be – in sharp contrast to the Min- ister who is well-known for his childish temper tantrums and the- atrics in Parliament.

The one and only judiciary

One open-court-shy probationary judge is chosen to decide on a constitutional matter of such monu- mental significance. He rules that the genuine MB must be repre- sented by the State Legal Advisor – which means that the two po- Speaker or his acts in a Legisla- Speaker. litical adversaries fighting for the tive Assembly cannot be ques- MB’s seat have the same lawyer tioned in court. Yet, one High One bad judgment it surely was in the same court case! It was one Court judge in Ipoh dismisses the when seen against a clause in the historic judicial farce! Speaker’s application to strike out Perak Constitution which states: the summons of the three turncoat “It is only upon receiving the de- One further bizarre leap of logic, assembly members who sought a cision of the Legislative Assembly the “arrogant novice” takes. He declaration that the Speaker’s or- will the Election Commission be extends his judicial purview to the der to declare their assembly seats able to establish that there is a proceedings of a state assembly – vacant was illegal. vacancy.” As retired Court of Ap- which the Federal Constitution peal judge N. H. Chan com- clearly forbids. He issues a court One Federal Court of five unani- mented: “The Federal Court has order restraining the Speaker from mously myopic judges declares put the cart before the horse – in holding any assembly meetings. that the three turncoat assembly this case, just the cart without the This trainee judge, who had his members are still members of the horse.” contract extended for another two Perak State Legislature and that years, has been well-trained to be the Election Commission is the One unanimously errant Federal naive! rightful entity to establish if there Court five-judge panel declares was a casual vacancy in the Perak that the Speaker’s decision to sus- One jaundiced judgment leads to State Legislature and the author- pend the illegitimate MB and six another. Constitutionally, a ity to declare a seat vacant, not the others was null and void. As was

Lim Kit Siang Justice Abdul Aziz Abdul Rahim Tengku Razaleigh

Aliran Monthly : Vol.29(4) Page 22 pointed out by the abovemen- as fast as about only two-and-a- ten judgments – in all the cases tioned “inconvenient” former half hours after the usurper made related to the Perak constitutional judge, it was a “perverse ruling”, his application. Nizar had to wait crisis to explain how the excep- an “ineffectual thunderbolt” – or eight days before his application tional decisions were arrived at. in the infamous words of Justice was heard! Why? It has been one long delay by the Augustine Paul – “irrelevant”! Court of Appeal in spite of the pre- One further major judicial mis- siding judge’s promise during the One dead constitution the Federal step the Court of Appeal takes oral judgment that the written Court leaves behind. It disgrace- by allowing an appeal by the il- judgment would be given in one fully disregards and discards legitimate MB. In a five-minute week. constitutional provisions to treat oral judgment, the appellate the doctrine of separation of pow- court reversed the brave decision One excellent exception of course ers with deference and shows of the Kuala Lumpur High Court is the well-written judgment by glaring preference for the illegiti- that declared Nizar the rightful High Court judge Justice Abdul mate MB. In stark contrast, on five MB. For many “(t)here was no Aziz Abdul Rahim declaring other occasions, the Courts had reasoned grounds of judgment Nizar as the rightful MB at all ruled that the judiciary has no ju- but mere findings of the Court times. One brave judge who ad- risdiction over decisions made in of Appeal” (Lim Kit Siang). ministers justice according to the legislative assemblies. law brings a glimmer of hope to a One big constitutional mess the judiciary that the public perceives One black day in the Perak State learned judges leave the country as having reduced itself to one big Assembly Malaysians will never in. One grave implication of the joke! forget. A fracas takes place. The judgment is that a Sultan can sack fraudulent State Government his Menteri Besar without a no- One colossal failure takes over. A fake Speaker is in- confidence vote in the State As- stalled. The police trespass into sembly. The Agong can now sack One Perak – a State with two MBs, the State Assembly and forcibly the prime minister at his pleasure two Speakers, two State Govern- drags out the Speaker, an officer (and perhaps much to the plea- ments and a police force and judi- of the legislature. “It was high- sure of Bolehland) without a mo- ciary without the two essentials handedness at its foulest,” com- tion of no-confidence in Parlia- of manhood that would make mented Umno leader, Mohd Ariff ment! them bold enough to stand up to Sabri Abdul Aziz. Umno’s shameless display of bel- One mere “regurgitation of a list ligerence and arrogance. One new judge (only one month of (the illegitimate MB’s) argu- old) in the Court of Appeal con- ments, void of any reasoned in- tinues the judicial circus. He is a put by the panel” (Kim Quek) One colossal failure it is by the one-man panel and grants the which “changes the nature of PM and illegitimate and delu- usurper MB a permanent stay of Malaysia as a parliamentary de- sional MB who compares his po- the Kuala Lumpur High Court’s mocracy and a constitutional litical struggle to Mandela’s and ruling that Nizar is the lawful MB. monarchy! In one fell swoop, Gandhi’s. “The Perak power grab Why choose a new man and a one- the supremacy and the sover- had reduced Perak into a failed man panel when the Court of Ap- eignty of the people as state. …(it) is a tragicomedy of er- peal has 22 judges? Why stay a symbolised by the institution of rors and bad political judgment declaratory order which is not the elected state assembly has that reflects a failure of political normally done? been sabotaged!” (Sim Kwang leadership” (Tengku Razaleigh Yang) Hamzah). One question crops up after another. Why the “indecent haste” One extraordinary mystery re- One and only way for Perak to to grant the illegitimate MB a stay? mains – in spite of the existence of move forward is to go back to the Why was the application of the such “extraordinary judges in people! It of course depends very lawful MB not treated with equal Malaysia with extraordinary much on the PM and also on the urgency? The court gave a verdict abilities” there have been no writ- Sultan. q

Aliran Monthly : Vol.29(4) Page 23 HOUSING Let the poor walk with dignity A plea to the Prime Minister of Malaysia by John Inbaraj

Mr Prime Minister: hardcore poor and those in the come without car-parks while oth- lower income group but most ers are forced to buy car parks. The ou have come down to people do not understand the lan- walls and floors are crooked and earth by walking the guage spoken. They continue to uneven. The paint is of low qual- YYY streets, flipping capatis, struggle. ity and fades away in no time. and riding the LRT. With one look, the world is able to Those who come into contact with Low cost homes are built for these tell that the property is “low cost”. you during these visits are im- low-income people. They are re- pressed with your humility; those luctantly built. In fact, they would who read about it look forward never be built if no pressure was At the mercy of banks with hope for the simple things in applied by the government. Devel- life to improve throughout the opers do this grudgingly, corners But wait… country through your knowledge literally cut, common corridors of the hardship of the people. added to the size of the flat unit Low- and low-medium cost flats These simple things, like efficient effectively reducing the living are often dense and without facili- transport, play a significant role area. The result? Families living ties. As maximum blocks and in the lives of low-income Malay- in flats measuring less than units are crammed into the mini- sians. 500sq.ft. mum land area as possible. The result: low cost flat owners are There has been endless talk of Sometimes added packages are actually paying more per sq ft of upgrading the lives of the forced onto buyers. Some homes space.

Aliran Monthly : Vol.29(4) Page 24 But more importantly, Mr. Prime even manipulate standing order ruptcy first. In Malaysia too there Minister, after the government’s arrangements and ‘attack’ per- is evidence of this. The smallest efforts in providing this inad- sonal accounts. Bank officers organisation can send your name equate space to low-income Ma- have forgotten that they are han- to CTOS for default. Imagine be- laysians, the government washes dling the peoples’ money. The ing denied a housing or car loan its hands and transfers responsi- struggling debtor receives a simply because somewhere along bility of ownership to the buyer monthly notice from the bank’s the way someone had informed and the banker. Here is where lawyer for which he is charged CTOS of some default on a hire low-income Malaysians are RM50-RM75 besides continuous purchase. lumped together with middle- harassment from the officer-in- class and rich Malaysians with no charge. Why does the government allow preferential treatment. banks to breach, directly or indi- Help us, Mr Prime Minister. The rectly, the confidentially code be- Of what use are the government’s poor too have a right to a place tween the bank and the client? efforts to house the poor if these under the Malaysian sun. They They freely and unlawfully ex- properties are subsequently must be treated with dignity and change information with CTOS. seized and auctioned off by the honour! These people have con- banks? Just look at the extent of tributed and continue to contrib- Companies have taken the easy auctions of low-cost properties! ute greatly to the Malaysian way out by blacklisting borrow- Crooked acts are said to be ram- economy. It would be a terribly ers in CTOS instead of using the pant in the auction process. There failure on your part not to ad- laws available to re-coup loans. seems to be a structure in this pro- dress your attention to our Imagine the millions that would cess, perhaps syndicate involve- plight. The ruling government’s go into reviving the economy by ment? Sometimes reserve prices greatest victory would be to ‘killing’ CTOS. are ridiculously low. The owners come down and deal with the are left hapless and through the real issues of the day that affect In the current situation with mercenary attitude of banks, bank the poor on a daily basis. Con- people being retrenched many charges keep piling on and nego- tinue to walk the streets. Visit more names will find their way tiation is not accepted. Poor own- low- and low-medium cost flats into CTOS. Someday when things ers are pushed to the wall. They and see for yourself the atro- recover and these people go back are literally cornered into bank- cious conditions the people live to work what will happen? They ruptcy. in. They are the breeding will be unable to secure a loan to ground for unhealthy activities repay these debts because CTOS Mr. Prime Minister, your admin- which are responsible for help- has condemned them and it is istration must come down to the less people to go astreay. these very loans that they want to ground. Stop the banking close! industry’s blatant arrogance and Victims of exploitation of the poor borrower. blacklisting Your call for “1Malaysia, People Help negotiate, through a govern- First, Performance Now” could ment-sponsored intermediary, fi- And while we are still with eco- not have come at a better time. nancial solutions for people fac- nomic issues, please use all your Most Malaysians on the ground ing difficulties through unfortu- might to kill CTOS (Credit Tip-Off are little bothered with Vision nate circumstances - people who Service). I dare say that CTOS has 2020. They are not affected by im- are genuine borrowers trying to single-handedly condemned the pressive facts and figures. They cope with their miserable lives. Malaysian economy to medioc- want a simple, safe and peaceful rity. country to live in – a country that Banks have deviated from their you should rule with fairness and original purpose. They charge All over the world people go justice. sundry fees for almost anything. through the grind before they suc- They block accounts at their ceed. Some of the world’s top mil- The poor must be able to walk whims and fancies. They may lionaires went through bank- with dignity. q

Aliran Monthly : Vol.29(4) Page 25 MARGINALISED COMMUNITIES

Orang Asli land rights: A raw, not-so-new deal Principles such as equality, social justice, reconciliation for past injustices and the right to participation in public life all seem to be missing from the proposed land policy by Yogeswaran Subramaniam

he recent announcement TT by the Federal govern- TTT ment that more than two- thirds of Orang Asli families are to be given between 450 square metres and 0.1 hectare for housing and up to 2.4 hectares of planted palm oil or rubber (see ‘Orang Asli families are to get land’, New Straits Times, 19 No- vember 2008) raises a plethora of issues and unanswered questions for the Orang Asli community.

It is not the intention of the article photo: Colin Nicholas to delve into the complicated web randum from the Orang Asal (in- ingly, the government has at least of law, human rights and govern- cluding representatives of the Or- a moral obligation to follow the ment policy that has constantly ang Asli) calling for the protection UNDRIP as a standard of plagued this area. This article of their customary lands (see ‘A achievement to be ‘pursued in a merely attempts to articulate, in a wish list too far?’, Aliran Monthly spirit of mutual respect’. succinct manner, some of the more (2008), Vol 28 No 8). This call was salient areas of concern for the not only an impassioned plea In essence, the UNDRIP declares introduction of the policy from an from yet another marginalised that Indigenous peoples have Orang Asli perspective and evalu- and dispossessed part of our so- rights to lands traditionally occu- ates the need for a systemic change ciety but a cry for justice in the pied (Article 26) and shall not be in the policy for the administra- form of the obligations contained removed from their lands without tion of Orang Asli, particularly in the 2007 United Nations Dec- prior free and informed consent their land matters. laration on the Rights of Indig- and the payment of just and fair enous Peoples (UNDRIP). compensation (Article 10). It also Human rights concerns provides for the rights of Indig- Malaysia has voted in favour of enous peoples to freely pursue Before this article is said to pre- the adoption of the UNDRIP twice their economic, social and cul- sume the needs of the Orang Asli, at the Human Rights Council and tural development (Article 3) and it is pertinent to note that it draws General Assembly without any participation, if they so choose, in inspiration from the recent Memo- reservation whatsoever. Accord- the life of the state (Article 5).

Aliran Monthly : Vol.29(4) Page 26 Legal rights, equality Socio-economic and a consultative development concerns approach From a purely economic perspec- Contrary to popular belief, the tive, the scheme raises a number Orang Asli do possess readily of issues. available legal rights within our legal system. Article 8 of the Fed- First,FirstFirst the scheme that involves 143, eral Constitution provides 318 acres does not take into ac- amongst others, for equality before count the 315,000 acres currently the law and goes further by allow- occupied by the Orang Asli (see ing, by way of exception, positive ‘Still many unanswered ques- discrimination in favour of the tions’, New Straits Times, 9 Decem- Orang Asli in respect of reserva- ber 2008). No public explanation tion of their land. Further, Article has been proffered as to how this 13 provides for adequate compen- massive shortfall will be managed sation for deprivation of property. by the Government and if there will be adequate compensation in photo: Colin Nicholas These rights have been recognised the event there is such a loss. Subject to further clarification by by two Court of Appeal decisions the government, it is unclear if all concerning Orang Asli customary Second,SecondSecond the scheme does not ca- the reported 870 Orang Asli settle- lands (see Johor v Adong bin Kuwau ter for the disparity in value be- ments ‘effectively’ participated or [1998] 2 MLJ 158; Selangor v Sagong tween lands occupied by the Or- consented to this proposed bin Tasi [2005] 6 MLJ 289). Given ang Asli that are located in urban, scheme. Even in the unlikely event that the common law (that in- fringe or interior areas. An acre in that they did so, the policy does cludes local cases) and custom fall an urban area would surely be not seem to explain whether the within the definition of ‘law’ (Ar- worth more economically than an Orang Asli have an option to ac- ticle 160(2) Federal Contsitution), acre in the interior. cept the scheme and if adequate it cannot be said that the Orang compensation will be awarded for Asli have no rights in law to their Third,ThirdThird the fixed allocation of land any deprivation of their tradi- customary lands and are solely homogenises the 18 sub-groups of tional lands. dependent on the goodwill of the Orang Asli thus assuming that government in this regard. their occupation and use of land Further, the devastating cultural is similar when the contrary is impact arising from the potential For present purposes, the legal true. loss or conversion of ancestral and position highlights a more impor- culturally significant portions of tant point: Orang Asli should, as Fourth,FourthFourth would the income derived Orang Asli land does not appear a matter of law and morality, be from the new deal be adequate for to be dealt with by the policy. Af- treated as equal stakeholders and their socio-economic and cultural ter all, the right to cultural integ- not merely unwitting beneficiaries sustenance and development if rity is also protected under the in the formulation of any policy the effect of the policy would be UNDRIP and other international affecting their customary lands. the permanent deprivation of human rights instruments. their existing means of income? A meaningful consultative pro- Unfortunately, enforcement of cess involving the effective partici- Fifth,FifthFifth the Orang Asli do not ap- these particular rights by the Or- pation of the Orang Asli in a bona pear to have a say in the manner ang Asli in the international fide manner should form the cor- in which the agricultural land is arena would be just short of im- nerstone of any such policy for- to be cultivated or used. These are possible at this stage due to the mulation. Only then can there be but a few of the issues that make non-binding nature of the a proper foundation for prior ‘free the policy questionable even from UNDRIP. and informed’ consent. an economic development stand-

Aliran Monthly : Vol.29(4) Page 27 point.

If previous experiences of other states are anything to go by, forced policies of Indigenous self-sustenance and the allocation of individual titles (albeit with a seven- year moratorium on transfer in this case) as earlier observed in countries such as the United States, Australia and Chile have had devastating effects on Indig- enous society. Why then reinvent the wheel and drag the Orang Asli through the same outmoded photo: Colin Nicholas policies when there are contem- porary international standards Orang Asli in decisions affecting seem to be missing from the pub- contained in the UNDRIP that af- them and the selective manner in lic version of the proposed policy. ford better respect and recognition which Orang Asli culture has for Orang Asli customary land been respected. Regrettably, incorporating all rights? these principles would involve a To apportion blame for such a pre- complete change in the adminis- Principles not policies dicament solely in the hands of trative structure and the modus the JOA is misconceived as it is operandi of the Government in its There is no doubt that customary the government that plays an in- dealings with Orang Asli affairs. lands are of paramount impor- tegral role in devising policies for Such a change, despite repeated tance to the sustenance and vital- the ‘welfare’ of the Orang Asli. A pleas by the community, NGOs, ity of the political, economic, so- policy that fails to take into ac- civil society and academicians, is cial and cultural well-being of the count the preservation and devel- still not forthcoming. Orang Asli community. Despite opment of the culture of a particu- this, the Department of Orang lar community cannot, by any If cultural diversity in our coun- Asli Affairs (‘JOA)’ does not place stretch of imagination, be for its try is to be upheld, all ethnicities too much importance on the pro- welfare. should be afforded this privilege tection of customary lands in its on an equal basis without excep- administration of the Orang Asli. Moreover, such a policy bears a tion. The Orang Asli, as first disturbing resemblance to the cul- peoples of Peninsular Malaysia, A perusal of the department’s turally destructive racist and eth- form part of the fabric that en- mission, vision statement and nocentric policies of Western set- riches our society and should not strategy reveals no reference to the tlers and colonials towards Indig- be moulded into any existence importance of respect and recog- enous societies previously ob- that suits anyone else but them- nition for Orang Asli customary served in the Americas and selves. q lands. Even more disappointing Australasia. is its mission to only preserve ‘positive cultural values’ (nilai What is important is not a policy Aliran member Yoges- budaya positif) of the Orang Asli. itself but the principles upon waran Subramaniam is which a policy is based. It is dis- currently pursuing a doc- This outdated paternalistic and appointing to note that principles toral thesis in Orang Asli ‘top-down’ approach from the such as equality, social justice, land rights at the Faculty self-confessed ‘godfather of Orang mutual respect, reconciliation for of Law, University of New Asli Affairs’ may explain the lack past injustices and the right to South Wales, Sydney. of effective participation of the participation in public life all

Aliran Monthly : Vol.29(4) Page 28 HOUSING Showdown at the High Chaparral Politicians need to be reminded not to abdicate their responsibility or forget their promises by Dalbinder Singh Gill

hen one talks about The sale of the WWW cows in Penang, the land was at WW “High Chaparral” of about RM11 per Penang tops the list in sq ft when it is Penang. Where is this place? actually about Tucked away in Gelugor, hidden RM100 some- from the commotion of the city, lies thing at market this village well known as value, accord- Kampung Buah Pala, 6.5 acres of ing to village beautifully landscaped surround- action commit- ings. tee reps.

But now, this village of about 300 Kampung Buah Pala Action Com- ringgit and sen. The residents re- villagers may be a thing of the past mittee chairman M Sugumaran, minded the Pakatan reps that dur- due to the alleged greed, hidden 52, blamed the previous state gov- ing the last general election cam- deals or back room machinations ernment under Dr Koh Tsu Koon paign, top Pakatan leaders and of certain quarters like the previ- for their plight. candidates had vowed to go all ous state government, Koperasi out to preserve this village and Pegawai Kerajaan Negeri Pulau In 1999, the villagers requested the defend the villagers’ right to the Pinang Berhad, the Land Office federal government to gazette the land. and certain officials in the current area as a traditional Tamil Hindu state administration. settlement in accordance with its Now, after 14 months of taking policy of preserving traditional over the state government, The settlement originally came villages as symbols of national Pakatan leaders are running under a housing trust gazetted pride. But the villagers’ attempt away from the case giving ex- under the Housing Trust Act 1950 proved futile. cuses that it would be sub-judice and residents paid temporary oc- to talk about the case or that they cupation licence (TOL) rents to the Senior resident, Draviam Arul can’t do much as the case is now Land Office from the days of Brit- Pillay, 84, said that Pakatan lead- before the courts. Note, however, ish colonial administration up to ers had promised the villagers that the land alienation actually 2005. that they would preserve took place on 27 March 2008, Kampung Buah Pala as a tradi- just a few weeks after Pakatan That status has become a curse to tional Tamil Hindu village. “They stormed into government in the village in recent years. Devel- vowed to defend our rights and Penang. opers have long coveted the area interests,” said the senior citizen. for high-rise development. Politicians need to be reminded But their hopes faded when not to abdicate their responsibil- In my personal view, this has all Raveentheran, the PKR Adun for ity or forget their promises lest the makings of a big land scam. the area, said it was all about greed triumphs in the end. q

Aliran Monthly : Vol.29(4) Page 29 BOOK REVIEW The Rising of India by Prof Bhanoji Rao

Rising India and Indian Communities in East Asia

Edited by K Kesavapany, A Mani and P Ramasamy, Singapore: Institute of Southeast Asian Studies,

rom its inception, the Institute of Southeast FFF Asian Studies [ISEAS] had, as part of its overall thrust and activities, a fair amount of focus on India. Notably, in 1993, ISEAS brought out Indian Communities in Southeast Asia, edited by the late Professor K S Sandhu and Profes- sor A Mani. That book of 1008 pages had the aim of examining “the degree of assimilation and integra- tion of Indians in Southeast Asia with the surround- ing communities…” (p. xix). Brunei, Indochina, In- donesia, Malaysia, Myanmar, Philippines, Singapore and Thailand were covered in the dis- course. Singapore -5, China, Japan and the Philippines – 2 each and all others – 1 each. Coming 15 years after the earlier work, the volume under review has fewer pages but has the East Asia The distinguished authors (33 of them) and editors reach, covering China, Hong Kong Japan, Korea, and are drawn from various countries and nationalities. Taiwan, in addition to Southeast Asia. It has two This and the East Asia reach are important achieve- distinct sections, one providing a macro picture in ments of the present volume. 10 chapters on Regional and Historical Perspectives and the other covering Country Perspectives, with The first chapter raises an important question and 25 chapters organised as follows: Malaysia – 7, provides a pertinent comment: “What is the mean-

Aliran Monthly : Vol.29(4) Page 30 ing of “rise of India”? Politically, India might only tion of which have inadequate physical infrastruc- exert a mild influence. However, economically and ture and manpower. The State does not seem to especially in the development of the software in- bother about enriching the facilities and manpower dustry, India is expected to have a great impact. … in those schools. No other Asian group has mastered the … software industry like the Indians” (pp 7-8). In Singapore, where an active immigration policy has attracted not only the highly qualified but also Chapters 2, 3 and 4 are concise and yet illumining the skilled and unskilled (maids, for instance), a high sketches of Indian immigration from the colonial 34.3 per cent of the Indian labour force had univer- era to the present. As indicated in Chapter 4 (p 68, sity degrees, in contrast to the 28.4 per cent in the Table 4.2), in 11 of the 15 countries/economies of total labour force (p587). As for school education, East Asia, the Indian population (2005 estimates) Indian students have not yet caught up with the as a percentage of country populations was negli- Chinese students in terms of performance (p607), gible. Relatively high shares were noted in respect but thanks to the efforts of the State, all ethnic groups of Singapore (9.7 per cent of total), Malaysia (7.3), have witnessed improved performance and one Myanmar (5), and Brunei (2.3). could hope for the convergence of the performance levels. The remainder of the first part (chapters 5-10) is gen- erally about the post-1991 economic reforms in In- In the case of Myanmar, there is hardly any data on dia and its ‘look east policy’ as the backdrop to the the relative well-being of the Indian settlers. Based emerging economic, social and cultural interactions on what little evidence can be gathered, the slim between India and East Asia. chapter of 12 pages has some findings. “Most edu- cated and enterprising Indians have left. … A few The chapters in the second part should in fact be are in the education and medical professions. Very divided into two groups: one group referring to few are in the government service…” (p492). economies where Indians have a significant presence and those with relatively little presence. The The essays in respect of economies with relatively chapters in the first group have much strength in low proportion of Indian population are just as in- pointing out the contributions of the Indian com- teresting as the others. Whether it is about the In- munity to the countries of residence/settlement. The dian maids in Hong Kong or businessmen in Tai- essay on Brunei, for instance, points out how Indi- wan and Indochina or the professionals in Japan, ans “as sojourners and as a community have con- the chapters have added fullness and lustre to the tributed to Brunei Darussalam for a hundred years total work. since 1906” (p190). In closing this short review, we note that, India has The seven chapters dealing with Indians in Malay- still a long way to go in terms of demonstrating sia cover a broad canvass, from economic achieve- manufacturing competitiveness, infrastructure ex- ments and political participation to self-help groups cellence and significantly reducing inequalities in and Hindu resurgence. In many ways it would seem human capabilities across its people. That achieve- that the Indian population is lagging behind as il- ment, if ever feasible, will set the tone to establish a lustrated by some of the indicators. The percentage strong Indian influence, by proving that a free-wheel- of the labour force with tertiary qualifications in 2004 ing multi-party democracy too could deliver devel- by ethnic group was 17 per cent for Indians as opment to an erstwhile colonial state. q against 21 per cent each for Malays and Chinese (p332). In the civil services of the country, 77 per cent were taken by the Malays, with Chinese and Prof. Bhanoji Rao is the Visiting Professor Indian shares being 9 per cent and 5 per cent re- at the Lee Kuan Yew School of Public Policy spectively (p383). Over half the Indian students go in Singapore. to Tamil medium schools, a considerable propor-

Aliran Monthly : Vol.29(4) Page 31 INTERNATIONAL

The Social Democrats and the Congress Was the Indian election a debacle for the left? If so, why? by Deepankar Basu

n the recently concluded A careful analysis of the results The first misinterpretation that is II 2009 general elections to show that this was an electoral gaining ground is the alleged ex- III the lower house of the rebuke to the social democratic left istence of a “wave” in favour of parliament (Lok Sabha), but not to social democratic poli- the centrist Congress party which the social democratic, parliamen- cies; on the other hand, just as in swept it to power, overcoming the tary left in India, composed of the 2004 when the right-wing ubiquitous current of anti-incum- Communist Party of India-Marx- Bhartiya Janata Party’s “shining bency observed in Indian politics. ist (CPM), the Communist Party India” slogan was decisively re- Nothing could be farther from the of India (CPI) and a bunch of jected by the populace, this is a truth. Despite having won 206 smaller left-wing parties, suffered mandate against neoliberalism parliamentary seats, the Congress the severest electoral thrashing in and for welfare-oriented policies. merely won 28.55 per cent of the a long time. This year, the CPM To the extent that the Congress votes polled in 2009, increasing it won a total of only 16 parliamen- was pushed by the social demo- by just about 2 percentage points tary seats. As compared to its per- cratic left to implement such poli- from 2004. An overall share of 29 formance in the last general elec- cies, it can possibly be interpreted per cent of the total votes polled at tions in 2004 this is a decline of as an indirect endorsement of the national level can hardly be 27 seats. The CPI, on the other Congress’s late-in-the day popu- interpreted as a “massive wave”; hand, won four seats in this time lism. besides, this overall increase also around, suffering a net hides substantial de- decline of six parliamen- creases in vote share tary seats from its posi- (and seats) in several im- tion in 2004. Does this portant states like mean that the Indian Orissa, Jharkhand, population has rejected Chhattisgarh and even the mildly progres- Andhra Pradesh. sive policies that the social democratic left tried The second misinterpre- to defend at the central tation going the rounds level? Is this a mandate assumes that this general for the ruling Congress election saw the definite party and by extension demise of regional par- for neo-liberalism, its pet ties and all federalist ten- project since the early dencies of the Indian 1990s? populace; the people voted overwhelmingly The facts don’t sustain for national parties, the such a claim. argument goes, because

Aliran Monthly : Vol.29(4) Page 32 they want stability. Whether How did the social democrats electorally marginal. people desire stability or not, the perform in the different states? fact is that the populace did not Three tendencies can be observed So, why was the bulk of the de- reject regional parties in favour of in the data. First, the social demo- crease in vote share for the social national parties. This can be seen cratic left managed to increase its democratic left concentrated in by looking at the share of votes vote share in a few states: Andhra Kerala and West Bengal? The clue going to the Congress and the BJP Pradesh, Goa, Gujarat, Madhya to an answer is provided by the taken together: according to pro- Pradesh, Manipur, Rajasthan, fact that both states, Kerala and visional figures released by the Uttar Pradesh, Chhattisgarh, West Bengal, currently have social Election Commission of India, the Uttaranchal and Andaman & democratic governments, led by combined vote share of the Con- Nicobar Islands. Apart from the CPM. In both states, the state gress and BJP in fact declined from Manipur, of course, the total vote governments have, over the past 48.69 per cent in 2004 to 47.35 per share of the SDL in these states few years, increasingly accepted, cent in 2009. remains insignificant; hence, the adopted and pushed neoliberal increase in the vote share did not economic policies, often in the Social democratic even remotely translate into name of development and performance changes in seats. Second, the so- industrialisation. This led to the cial democratic left lost its share emergence of a seemingly para- of votes polled in a large number doxical situation: the social demo- How did the social democratic left of states: Assam, Bihar, Jammu & cratic left opposed, however fee- parties perform in terms of the Kashmir, Kerala, Maharashtra, bly, the continued adoption of share of votes polled? At the na- Punjab, Tamil Nadu, Tripura, neoliberal polices at the level of tional level, the CPM lost only West Bengal, and Jharkhand. The the central government, while the marginally in terms of the share percentage declines in Punjab and same set of policies were aggres- of votes polled. The decline was Jharkhand were very large, sively pursued in the states where from 5.66 per cent in 2004 to 5.33 though that did not affect the reck- they were in power. The debacle per cent this year; the CPI, on the oning in terms of seats because the of the social democrats in the two other hand, gained marginally at SDL did not have seats to start most electorally important states the national level, increasing its with, i.e., in 2004. On the other of Kerala and West Bengal can, share of votes from 1.41 to 1.43 per hand, the sharp decline in the vote therefore, be read as a forceful recent. Thus, going by these national share in Tripura did not translate, jection of this doublespeak and figures, there is no evidence of any fortunately for the social demo- hypocrisy. The rejection of the so- trend against their opposition, cratic left, into any decline in seats. cial democrats at the level of these however feeble, to the neoliberal Third, the states where the loss of two states, moreover, dovetails policies of the UPA-led Central vote share wreaked havoc for the into the overall mandate in favour government. reckoning in terms of seats were of progressive and social demo- Kerala and West Bengal: in cratic policies, and against the But the national level figures Kerala, the share of votes going to neoliberal turn, at the national hide many interesting state-level the social democrats declined level. Of course there were other variations; hence we must also from 39.41 per cent in 2004 to 37.92 local factors, both in West Bengal look at state-level data to get a per cent in 2009; in West Bengal, and in Kerala, that overlaid this more complete picture. There is the corresponding share declined broad rejection of the neoliberal another reason why we need to from 50.72 per cent in 2004 to 43.3 turn and turned the mandate de- supplement national level with per cent in 2009. The bulk of the cisively against them in both these state-level analysis: since the decrease in national vote share states. Before we look at some of social democratic left is promi- was concentrated in the these factors, especially for West nent only in the three states of electorally important states of Bengal, where the crash of the so- Kerala, Tripura and West Ben- Kerala and West Bengal, the prime cial democratic left was the most gal, the national figures are not left bastions, whereas the increase stunning, a comment about the very relevant to assessing their in vote share was spread out so-called national “wave” in electoral prospects. across states where the SDL is favour of the Congress is in order.

Aliran Monthly : Vol.29(4) Page 33 Social democrats deal with the unprecedented eu- saying one thing at the central help the Congress phoria. As many media reports in level and doing exactly the oppo- India show, the Confederation of site at the state level. The so-called nationwide “wave” Indian Industries (CII), the Federa- in favour of Congress, if there was tion of Indian Chambers of Com- Probably nothing brings out this one, resulted to a large extent from merce and Industry (FICCI), and better than the National Rural the slew of populist policies that other business groups have al- Employment Guarantee Act it adopted over its last few years ready started preparing their (NREGA). The NREGA, which in office, pushed towards this by “wish-list” of reforms, by which provides a guarantee of a mini- the social democrats. These in- they mean another round of mum of 100 days of work to the clude the National Rural Employ- neoliberal policy onslaughts on rural poor, came into effect on 2 ment Guarantee Act (NREGA), the the common people. Naturally February 2006 in 200 of India’s step-up in public investment in enough, land reforms does not fig- poorest districts. This provision agriculture, the debt relief ure in this wish-list of reforms. was originally brought to the fore programme for farmers, the Right by grassroots-level mass move- to Information Act 2005, the Cen- The social democratic left’s abil- ments in Rajasthan and other tral Educational Institutions (Res- ity to counter the Congress’ claim states in India, and was later ervation in Admission) Act 2006, that the populist thrust was a re- adopted and forcefully pushed by the Unorganised Workers’ Social sult of a progressive shift in the the social democrats at the central Security Bill 2008, the setting up party, in reality fiercely opposed level. While the NREGA has been of the Sacchar Committee to in- by entrenched interests within the constantly attacked in the main- quire into the continued Congress, was severely limited by stream press as a waste of re- marginalisation of Muslims in the its actual, de facto record in the sources and a useless policy ini- country. The Congress cashed the states where it was in power: tiative, in reality it has managed benefits of this populist swing Kerala and West Bengal. Thus, to create substantial benefits for electorally, claiming it to be its own paradoxically, while it was the rural proletariat and poor policies whereas, in truth, the so- largely responsible for creating peasants; even though there is still cial democratic left was largely the populist shift in the Congress a lot of room for improvement, the instrumental in pushing for these party and thereby creating sup- limited pro-people initiative rep- policies at the central level. port in its favour, it could not resented by the NREGA has man- transform this effort into any sub- aged to improve the lives of the Other similar policies pushed for stantial electoral advantage for it- rural poor by putting a floor on by the social democrats include: self; and this was largely because agricultural wages and assuring opposition to financial sector re- of its doublespeak and hypocrisy, some days of employment, both of forms (pensions, insurance), opposition to outright priva-tisation of the public sector, privatisation of health care and education. These defensive actions by the social democratic left have partially limited the unbridled power of capital to exploit labor and have provided some relief to the mass of the working people in India. It is, therefore, no surprise that corporate India is exultant at the social democrats’ electoral disaster this month. The stock market in Bombay erupted immediately after the results were out. Trading had to be stopped for a while to

Aliran Monthly : Vol.29(4) Page 34 which resulted in increased rural overt neoliberal policy moves: gress (TMC) and the Congress incomes. privatisation of health care, (INC) to forge an alliance in West privatisation of education, full- Bengal; this alliance was instru- West Bengal: scale assault on the public distri- mental in consolidating the anti- A closer look bution system, and an aggressive Left votes and directly resulted in state-sponsored attack on farmers the electoral reverses of the social How did the NREGA fare in in a bid to “acquire” agricultural democrats in West Bengal. West Bengal and Kerala com- land for a neoliberal pared to other states? In 2006- industrialisation drive. Singur Alas, the argument does not hold 07, the person-days of NREGA and Nandigram stand as sym- water. If it were true that the so- employment generated per rural bols, at the same time, of both this cial democratic debacle was fu- household amounted six in attack by the state on behalf of cor- elled mainly by the consolidation West Bengal and even more porate capital and also of the fierce of anti-Left votes (because of the wretched three in Kerala, with resistance to this brutality by the Congress-TMC alliance), it would both states figuring in the list of poor peasants and landless labor- mean the following: the social demo- the three worst performers. Com- ers. The arrogance of the state gov- cratic left’s share of votes polled pared to this, the all-India aver- ernment was in repellent display would remain relatively unchanged age was 17 person-days. during the “re-capture” of between 2004 and 2009. This is a Chhattisgarh generated 34, Nandigram in March 2007, a vio- straightforward testable implica- Madhya Pradesh 56, Assam 70 lent attack on the people oppos- tion of the above argument. What and Rajasthan 77 person-days. ing forcible land acquisition, and does the evidence say on this? A similar picture emerges for the also in the manner it dealt with next year too: in 2007-08, West the case of Rizwanur Rahman. There was a big decline in the Bengal generated eight person- Against a backdrop of endemi- share of votes that went to the so- days and Kerala six person- cally dismal conditions for the cial democratic Left Front: in 2004, days, much below the all-India Muslims in the state, the insensi- the Left Front had garnered 50.72 average of 16 person-days. The tivity displayed in the Rizwanur per cent of the votes polled; in dismal performance of the state Rahman case increased the fury 2009, the corresponding vote government led the Paschim of the common Muslim popula- share fell to 43.56 per cent. While Banga Khet Majoor Samity tion against the social democratic it is difficult to accurately see how (PBKMS), a non-party, registered state government. Is it so difficult this 7 per cent statewide decline trade union of agricultural to see, then, why some of the dis- is distributed across all the par- workers, to file a public interest tricts in West Bengal where the liamentary constituencies because litigation in the Calcutta High social democrats performed of the 2008 delimitation of con- Court on non-implementation of wretchedly, like North and South stituencies, we can nonetheless the 100 days work guarantee Paraganas, Nadia, Murshidabad, figure out the changes in vote scheme in West Bengal. In sum, Malda, Birbhum, are also ones shares in those that remained rela- therefore, the two states where with a relatively high proportion tively unchanged by the delimita- the social democrats were in of Muslims? tion process: Balurghat saw a power saw the worst implemen- marginal decline of 0.49 per cent, tation of the NREGA! At this point, we need to closely Raigunj a decline of 3.13 per cent, scrutinise an alternative argument Alipurduars a decline of 4.48 per Coming back to the factors specific that is going the social democratic cent, Cooch Behar a decline of 6.88 to West Bengal that led to this elec- rounds. This argument runs some- per cent, Darjeeling a decline of toral disaster for the social demo- thing like this: the Left Front made 7.99 per cent, Birbhum a decline cratic left, we must complement a great tactical mistake in sever- of 9.65 per cent and Bolpur wit- the story of the state government’s ing ties with the Congress-led nessed a massive decline of 15.65 surrender to neoliberalism with United Progressive Alliance per cent. Can we, in the face of this its fatal arrogance. Failure in the (UPA) at the Centre on the issue overwhelming evidence of a mas- implementation of the NREGA of the nuclear deal with the USA; sive rejection of the social demo- went hand-in-hand with other this allowed the Trinamool Con- cratic left, still stick to the story of

Aliran Monthly : Vol.29(4) Page 35 the supposed consolidation of anti-Left votes as the primary reason behind the debacle?

The social democratic left played an important role in slowing down the juggernaut of neoliberalism in India through its intervention in the formation of the Common Minimum Program of the UPA; and this was largely possible, given the political situation five years ago, because of its sizeable parliamentary presence at the central level. If nothing, the reaction of corporate India to the electoral debacle of the social democrats is proof of the partial efficacy of its past interventions. But there are at least two serious problems for a strategy that fo- political offensive in the context tanced itself from its program- cuses on primarily on electoral of the class struggle in India also matic concerns of a people’s politics, as the social democratic finds reflection in their over-em- democratic revolution. To re- left does. phasis on electoral politics, to cover its potency and relevance, the virtual exclusion of all non- it must refashion itself by forg- First, most of its interventions, electoral struggles. Over the last ing links with the rising tide of even though salutary, are at best two decades, there is not one revolutionary mass movements defensive actions and therefore significant nationwide non-elec- in India against the neoliberal extremely limited from any long- toral struggle that it initiated or offensive and overcome its ob- term left political perspective; the led; all its attention and energy session with electoral politics. ruling classes set the agenda and has been fixed towards how to Of course if post-poll statements move forward with a concrete maintain its electoral position in of the social democratic bigwigs programme of neoliberal reforms West Bengal, Kerala and in West Bengal, like Biman Bose, and the social democrats reacts to Tripura. More often than not, it are anything to go by, they have that agenda. It tries to halt the has been willing to enter into decided to do exactly the oppo- speed of the reforms, tries to win a opportunistic and unprincipled site: justify the electoral debacle battle here or there. In such a sce- alliances to attain short-term on external factors, avoid any se- nario, the best outcome can only electoral goals, little realising rious rethinking and continue be a return to the status quo, not a that this opportunism leads to with elections as the primary fo- move forward towards a socialist long-term political setbacks. At cus of their politics. q future. Is it difficult for the social times it has even gone with the democratic left to see the inherent right-wing BJP to keep the cen- and long-term limitations of its trist Congress out of power, strategy? quickly reversing the logic at the Deepankar Basu is Assis- next moment and aligning with tant Professor of Econom- This brings us to the second, and the Congress to defend secular- ics at the Colorado State related, problem of social demo- ism. Caught in these endless University.University.University. cratic strategy. The fact that the electoral antics and working Communist parties, now part of within a framework whose rules Source:Source:Source: CounterPunch, what I have called the social have been set by the ruling 26 May 2009. democratic left, have lost the classes, it has gradually dis-

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Aliran Monthly : Vol.29(4) Page 37 WHO SMUGGLED GANESAN? Continued from page 40 he had come with the invitation letter from the Speaker to attend the Assembly sitting.

Likewise, Kulasegaran and Dr Jeyakumar, both elected MPs from Perak were turned away. That’s how strict the police were. They stringently enforced this ruling of refusing permission to all and sundry.

Smuggled in?

So the natural question is: How did Ganesan gain entry into the building? Who authorized his presence in the Perak State Assem- have left the Assembly. Can a group of BN Assemblymen bly? How did he by-pass the po- get together privately in one cor- lice security arrangement? How This simple action would have ner of the Assembly building did he hoodwink the police? How prevented the Assembly from be- when the Speaker was still occu- come the police did not detect coming chaotic and unruly. Since pying his chair and elect someone him? Was he smuggled in? Was he did not do this, it can be rightly else? We have a situation when he planted in the building the pre- construed that he had contributed an outsider appears mysteriously vious day? to the topsy-turvy situation. in the building and he was elected Speaker when the Assembly had Is it possible that the police were The illegitimate MB and the not officially convened. working hand in glove with ille- Barisan Nasional Assembly per- gitimate MB Zambry and BN As- sons by smuggling in Ganesan This was not the only absurd situ- semblymen and facilitated had incited the unruly behaviour. ation we had on 7 May. On that Ganesan’s presence in the build- day, we also seemed to have had ing? Illegally Elected? two Speakers and two Menteris Besar at the same time in the same Ganesan had no business to be Thirdly, the way Ganeson was building! inside the Assembly. One can ‘elected’ Speaker was also ques- safely conclude that his appear- tionable. According to Speaker V The Standing Orders of the As- ance and continued presence in Sivakumar, the Assembly had not sembly were thrown to the winds the Assembly prompted and pro- been convened. In other words, the and the proper procedures that voked a situation which went be- Assembly was not in session. had to be followed were totally yond control. ignored. And that was the reason Sivakumar had stated that he why things turned ugly, unruly Secondly, contrary to his claim would not convene the Assembly and chaotic on May 7. that he had no choice but to call as long as those ordered out of the in the police, if indeed he was the House were still inside. That was A BN-Police Speaker of the Assembly as he his stated position. That being the conspiracy? claims, he could have adjourned case, how was Ganesan elected the Assembly sitting, following when the Assembly was not in Ganesan further contributed to the which he and his cohorts could session? chaos by ordering the police to

Aliran Monthly : Vol.29(4) Page 38 forcibly evict Sivakumar from the Assembly. What were the police doing inside the Assembly? Ganesan did not send someone to invite the police to do his bidding. They were already there waiting for his orders. Isn’t that very strange!

By calling on the police to drag out the duly elected Speaker from the Assembly, Ganesan had de- filed and desecrated the sanctity of the Assembly. It is an unforgiv- able sin that he had committed that must be roundly condemned. We should never introduce thug- gish behaviour into the legislative assembly where the rule of law should have been paramount and should have prevailed at all times.

What transpired as a result of Ganesan’s conduct raises many serious questions. Why did the police obey him? How did they know he was the new speaker? Was there an announcement that Sivakumar was ousted?

Or was this part of a pre-prepared and pre-rehearsed script? The way things fell into place would indicate that there was a scheme to capture the Perak state government, if necessary, by force. The plot was hatched studiously and implemented without a care for the rule of law.

This is a dangerous precedent and it should not be tolerated. It must be condemned in the stron- gest terms. There must be retribu- tion for this outrageous behaviour.

Perakians will remember this shameful episode in their proud history and they will punish all those who frustrated the democratic will of the people. q

Aliran Monthly : Vol.29(4) Page 39 PERAK CRISIS Who smuggled Ganesan into the Perak Assembly? How did unelected Mr Nobody, Ganesan, get into the Perak Assembly when elected MPs like Lim Kit Siang, Dr Jeyakumar and Kulasegaran were denied entry by P Ramakrishnan

he claim by self-pro- claimed Speaker of the TTT Perak State Assembly, R Ganesan, that he had no choice but to summon the police into the House at the height of the ruckus during the May 7 sitting, is dubious and deceiving (Sunday Star 17 May 2009). There is no merit in his claim.

In the first instance, his entry into and his very presence in the As- sembly is questionable. How on earth did Ganesan get into the Assembly? The Assembly building was out of bounds to all except the elected members of the As- sembly.

There was a police cordon to prevent all the others from entering the Assembly. A 500-metre no-access zone was declared and anyone found anywhere near this pe- rimeter were either chased away or were arrested when they re- sisted the police orders.

Even Perak Members of Parlia- ment were denied access to the Assembly. Veteran MP Lim Kit Siang was refused entry into the building in spite of the fact that Continued on page 38

Aliran Monthly : Vol.29(4) Page 40