For Justice, Freedom & Solidarity

For Justice, Freedom & Solidarity PP3739/12/2009(022904) ISSN 0127 - 5127 RM4.00 2009:Vol.29No.5

Aliran Monthly : Vol.29(5) Page 1 COVER STORY Umno and Pas: Once bitten, twice not shy A Pas-Umno ‘marriage’ would have been nothing more than a marriage of convenience with disturbing consequences by Maznah Mohamad

ow serious was the pro- HH posal for “unity talks” HHH between Umno and Pas? After much pussy-foot- ing and yes-I-want-no-I-will- think-about-it, Umno President Najib was offering his party’s hand to Pas, an apparently coy and indecisive bride-to-be.(And now there is an attempt to engage in “intellectual discourse”, initi- ated by the deputy youth leaders of both parties.)

But one thing we can be sure about, this unity talks plan was a serious marriage proposal on Umno’s part, and the only thing that kept the prospective bride from accepting the proposal out- right was that some members of the family were dead set against the idea. Marrying an old, sly, rich suitor was risky.

It was obvious that Umno had much to gain from the Pas merger. And as for Pas, would it not have been too much of a sacrifice, espe- law. This time around, Umno Courting trouble cially the second time around? would be revived and Pas would have willy nilly relinquished its Why was it so crucial for Umno to In their previous liaison, the rela- identity as an Islamic party, while court Pas and tempt it into leav- tionship was rudely ended when its path towards an Islamic de- ing the Pakatan Rakyat? Umno called off the deal in 1978 mocracy would have come to a with the invoking of an emergency dead end. Hypothetically speaking, having

Aliran Monthly : Vol.29(5) Page 2 EDITOR'S NOTE

In our cover story, Maznah Mohamad analyses the recent proposal for Umno-Pas unity talks. A Pas-Umno CONTENTS ‘marriage’, she says, would have been nothing more than a marriage of convenience with disturbing consequences. Such talk and the divisions it has created in Pas COVER STORY may have contributed to the party’s poorer showing in ••• UMNO And PAS: Once Bitten, the recent Manek Urai by-election, suggests Anil Netto. Twice Not Shy 222 ••• A Wake-up Call For PAS 777 Tan Pek Leng reviews an inspiring new book of poems and prose of men who were imprisoned without trial for their convictions in Singapore. Such dissidents and FEATURES ‘prophets of doom’ are actually essential cornerstones ••• Lambs Under The Throne 888 for building an accountable and just democracy, says ••• Human Rights And Criminal Justice 111111 Angeline Loh. ••• Take Action Against Steep Hill-Slope Projects 161616 It all depends on how you look at them. Hishamuddin ••• Vistas Of Detention... Yahaya points out that people like Mat Kilau and Tok Voices Of Freedom 191919 Janggut were dubbed “traitors” by the British while Chin ••• ‘Prophets Of Doom’ Provide Hope 232323 Peng and company were seens as “terrorists”. No mat- ••• Traitors And Terrorists 262626 ••• Time To Abolish The ISA For Good 282828 ter what, not one person should be held in detention •• Time To Abolish The ISA For Good 2828 ••• Public Procurement: Abuses And without trial as it violates basic human rights, asserts Challenges 292929 Norlaila Othman. ••• Election Verdict 2009: Whither BJP? 323232 ••• Can You Sell Something That It’s not just the ISA that needs to be repealed. It is time to You Don't Own? 404040 set up a law reform commission to look into and update outdated criminal laws, writes Hamid Ibrahim. Tommy Thomas discusses the Griffith thesis: Judges well lend REGULARS their support to government measures to preserve sta- ••• Current Concerns 343434 bility and they will not be overly concerned if such measures require the invasion of individual stability. OTHERSOTHERSOTHERS Government policies, such as those governing public ••• Subscription Form 181818 procurement, need to be reformed as well. H A Lee says ••• New Book By Dr Francis Loh 393939 its time to give the rakyat a preview of what ketuanan rakyat economic and social policies will look like.

Finally, P Ramakrishnan takes a look at the controversy Published by over Kg Buah Pala. Persatuan Aliran Kesedaran Negara (ALIRAN)(ALIRAN)(ALIRAN) 103, Medan Penaga, 11600 Jelutong, Aliran is an organisation for ‘social democratic reform’. We advocate freedom, justice and Penang, Malaysia. solidarity; comment critically on social issues, offer Tel: (04) 658 5251 Fax: (04) 658 5197 analysis and alternative ideas keeping in mind Email (Letters to Editor): the national and global picture based on universal [email protected] human rights and spiritual values. We are listed on the on the roster of the Economic and Social Council of Email (General): [email protected] the United Nations. Founded in 1977, Aliran Homepage : http://www.aliran.com welcomes 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(5) Page 3 Pas join the BN coalition would lacks, Umno can be repackaged, nated by the intellectuals, up the parliamentary seats of the its long-lost lustre reclaimed Umno’s greatest threat. BN to 163 and reduce the PR seats through Pas’ hand in marriage. to 59. This would mean that the Second, Pas’ brokers had to an- BN would get to control 73 per Having 63 per cent of Malay seats swer the question as to why they cent of the seats and PR would be in the BN is the best idea to sell to were now contemplating sleeping reduced to having only 27 per cent Malays: that there would now be with an old enemy. What hap- of the seats. Malay unity. Umno hopes that pened to the “kafir-mengkafir” ac- with “Malay unity” the non- cusations? Would they “forgive Furthermore, if all the Pas seats Malay partners would were to be added to the Umno feel even more secure seats, the BN coalition would be about the arrangement divided this way – 63 per cent and will continue to be Malay seats, 25 per cent East Ma- ensconced within the laysian seats and 12 per cent non- BN rather than leave Malay seats. This is Umno’s the coalition. dream: to sell the idea to Malays that the BN is a multi-racial party As for Pas, would this with a difference — that Malays be a dream scenario? It and Muslims are the strongest would have been a dif- and only formidable majority ficult road ahead for within the coalition. the party brokers, who were deeply immersed Umno has proved that, as a party, in courtship rituals. it is not able to institute any internal reforms. Not only is the party First, they had to deal riddled with corruption, it also with the other faction lacks both ulamas and intellectu- of Pas, who were als among its membership. Pas strongly opposed to has the ulamas and the intellec- the idea. This is a tuals Umno sorely needs, and the strong faction with an only plausible way for Umno to equally strong icon in reinvent itself today would really the person of the Tok be to absorb what it does not have. Guru Nik Aziz. This is Through “buying in” what it also the faction domi-

Aliran Monthly : Vol.29(5) Page 4 and forget” over the Memali inci- media and guarantee the liberties “Malay unity” even if artificially dent? of citizens? These issues had created through electoral machi- never been part of the unity talks; nation, would have led to a more Third, they would have had to the talk would only be about re- racially-divided Malaysia. More weigh the possibility that the suscitating Malay dominance than it ever has been. party would lose its Islamic iden- rather than Malay progress. tity, as being in the BN would Voters would have been forced to mean having to negotiate with But all of the above questions may vote within a more starkly racial Umno on everything, from the dis- not have occupied the minds of framework, even if it goes against tribution of ministerial posts to the “unity” team. For Umno, it was their sense of decency. Voting for determining what is the right Is- to save itself from obsolescence. the BN would simply mean vot- lam. Besides, in the next election For Pas, it was for some of its bro- ing essentially for Malay-Muslim Pas would not have been able to kers to taste the power of federal supremacy and voting for PR use its signature moon and green ministerships, besides ensuring would mean voting for minority logo to contest. Small issue, but in that it would get to control four voices. It wouldn’t be a choice be- today’s world, image is every- states together with Umno — tween development or backward- thing. Selangor, Perak, Kelantan and ness or between clean government Kedah. or corrupt government. It would Fourth, they would have had to be mostly about race. figure out how to clean up an The Pas leaders may even have Umno which they themselves had thought that with all these states Second, the negotiating power of derided as being corrupt, de- under the joint control of their the non-Malay partners within bauched and immoral. What per- party and Umno, Pas could then the BN - including those of the suasive power would Hadi achieve its own dream of having East Malaysian partners - would Awang, Nasharudin, Mustafa Ali Islamic governance in four more have been severely diminished,. or Hassan Ali have over the states. With Malay control of 63 per cent Umno warlords, contract-lords of the BN seats, not even the part- and money-lords? Creating a strong, Malay-Muslim ners from Sabah and Sarawak majority has never been that easy could squeak within the coalition; Fifth, they would have had to face and secure. they would have possibly seen a the strong possibility that all the drastic fall in their fortune from non-Malay support that they are Disturbing being kingmakers to beggars. getting now would completely consequences evaporate come the next election. Third, Malays would have been However, the implications of the even more confused about their Finally, how would joining the BN above scenario could lead to dis- own quest for economic advance- help in efforts to revive the turbing consequences. ment, democracy, cultural free- economy, improve educational dom and clean government. There standards, create an independent First, the logical outcome of would only be a monolithic racial

Aliran Monthly : Vol.29(5) Page 5 party to choose from; there would For example, while zina (sexual and everyone would have ended be no intra-Malay contestation, relations outside marriage) is leg- up paying a heavy price for this. which could provide for a healthy islated as a crime under the vari- basis to build and strengthen de- ous Islamic criminal offences, the Umno would have shed its iden- mocracy. Syariah lobby laments that the tity as a moderate, Malay party; punishment under Syariah proce- Pas would have thwarted its own Already, the sluggishness of the dures is limited to only six months road towards democracy; Malays economy and the worsening of imprisonment, a RM1,000 fine would have been held to ransom mediocrity in education, gover- and six strokes of the rotan; by the fiction of a unity while re- nance, health, judiciary and even whereas, under Islam, they insist maining backward and in pov- transport planning have been at- that zina should be met with ston- erty, as we are not sure that tributed to the NEP. With a mono- ing to death. Umno’s patronage politics would lithic Malay government, the have come to an end with this policy of handouts would have Already, Pas has shown its intol- marriage. only be intensified rather than erant face by demanding that Sis- loosened. ters in Islam drop “Islam” from The rest of Malaysia would have its name. Perhaps, if the unity looked back at the gains of 8 Fourth, the development of Islam talks had gone ahead, Umno March 2008 as nothing more than itself would have taken on a more would have also gone along with a small blip in Malaysia’s long authoritarian and draconian turn. this idea as the party is desperate and continuing history of rule-by- With Pas and Umno in fusion, the to survive, and those in despera- racism. combination could even have been tion will give in to demands. Pas deadly, as far as Muslims are con- knew that Umno was that desper- See accompanying piece for a brief cerned. ate to seek its support. discussion of the impact of the ‘unity talks’ proposal on the Manek Urai by- Already there is a powerful Is- A Faustian pact election. q lamic bureaucracy that had been built by Umno. It has been quite Finally, by now it is easy to see an intolerant bureaucracy that has that the union would have been Dr Maznah Mohamad, banned many forms of Islamic nothing more than a marriage of a member of Aliran, groups, particularly the various convenience. The Pas-Umno bar- writes regularly on tarekats and all kinds of Islamic gain would have been Faustian in Malaysian affairs. perspectives from existing. nature (the devil lurks behind),

The right Islam can only be de- fined by state Islamic authorities, and other competing interpreta- tions are simply outlawed.

Umno in its zeal to please Pas (especially its ulama faction) would probably give in to the enforcement of Islamic criminal laws or, to be more precise, the hudud.

At the moment, Islamic scholars and jurists are not too happy that the Syariah courts are not given enough power to mete out proper punishments by Islamic standards.

Aliran Monthly : Vol.29(5) Page 6 COVER STORY A wake-up call for Pas “Unity talks” proposal may have led to Pas’ reduced majority in Manek Urai by Anil Netto

he Manek Urai by-elec- may have helped in reduc- TT tion result on 14 July re- ing Pas’ winning majority. TTT veals that the BN has (But whatever positive ef- made some inroads, es- fects arising from these fac- pecially in some rural Malay ar- tors would have been eas, building on its Malay heart- neutralised somewhat by land gains in Bukit Gantang, since the outrage following the the 2008 general election. tragic death of political secretary Teoh Beng Hock at In the 2008 general election, Pas the Malaysian Anti-Cor- defeated the BN by a 1,352 major- ruption Commission in question- supporters too may have shown ity in Manek Urai. This time, Pas able circumstances.) their displeasure over Pas’ rap- retained the seat by a whisker: a prochement with Umno. 65-vote majority. Others pointed out that alleged vote-buying and promises of de- Then there was the factionalism Prime Minister Najib was quick velopment including a much- within Pas over whether the party to claim a moral victory. He said talked about bridge could have should stick with the Pakatan “a change had begun” and it swayed some votes. Rakyat or engage in unity talks (or marked the return of the people’s “intellectual discourse” or what- confidence in the BN:”There has But an online poll on my blog ever you may call it) with Umno. been a large swing factor in Manek showed that many Malaysians The lack of party unity could have Urai. This is particularly gratify- felt that the proposed unity talks weakened the Pas campaign and ing because we are dealing with a between Pas and Umno was the cost it votes. part of the Malay heartland.” largest factor accounting for Pas’ poorer performance. In the end, a party that is unsure Umno leaders desperately wanted about who its real allies are and Manek Urai to reverse the by-elec- While Pakatan supporters might what it stands for - a more pro- tion trend of Pakatan retaining not have taken too kindly to such gressive, inclusive approach or a their seats on the peninsula by talks, some fence-sitters in Manek more conservative, communal larger majorities (compared with Urai may genuinely have felt that stance - will have a hard time con- the general election result). If they greater unity among Muslims vincing voters why they should couldn’t secure a win, a close fight might not be a bad thing. Such a vote for it. And that, to some ex- would do nicely, thank you very proposal may even have blurred tent, explains the reduced major- much - and they got that. the ideological distinction be- ity for Pas at Manek Urai. tween the two parties among the Najib’s public relations initiatives, more easily swayed voters. Thus, It’s a wake-up call for Pas to re- changes in the language educa- they could have divided their sup- turn to the new, more enlightened tion policy, and the usually wave port between Pas and Umno this path towards progressive new of support for an incoming PM time around. Some loyal Pakatan politics. q

Aliran Monthly : Vol.29(5) Page 7 JUDICIARY Lambs under the throne The myth of judges as protectors of liberty by Tommy Thomas

n Malaysia’s political II system, the Federal Con- III stitution is supreme. Fundamental liberties are enshrined in Part II of the Con- stitution. Under the doctrine of separation of powers, the Execu- tive governs the nation, the Legis- lature enacts the laws, and the Ju- diciary acts as the arbiter of disputes between citizen and citizen, and State and citizen. The Judi- ciary, as the third branch of government, is also entrusted with the heavy responsibility of inter- preting the Constitution, including deciding whether laws presented by the Executive and passed by Parliament are constitutional. Hence, the celebrated remark by Chief Justice Charles Hughes of the US Supreme Court: “We are under a Constitution, but the Constitution is what the judges say it is.”

One of the major casualties of the never-ending Perak crisis is the institution of the judiciary. When unprecedented and inexplicable decisions are made by our courts such as denying a litigant the right to choose his own lawyer, the leap-frogging of proceedings straight to the Federal Court with- laysian cases, one can well under- But do Malaysian judges act dif- out a hearing before the High stand the decline of confidence of ferently from their brethren in Court and the Court of Appeal, the average Malaysian in the ju- other jurisdictions? After all, even and the disregard of clear provi- diciary as an independent, neu- the Indian Supreme Court, which sions in the Constitution, as judi- tral arbiter between State and in- probably enjoys the distinction of cially interpreted in previous Ma- dividual. being the greatest protector of civil

Aliran Monthly : Vol.29(5) Page 8 liberties among courts across the and State impartially and with collection of attitudes, beliefs and globe, only grew in reputation af- neutrality is a myth. “Neither principles, which to them repre- ter the defeat of Indira Gandhi’s impartiality nor independence sent the public interest. “They do regime in 1978. In the first two necessarily involves neutrality. not always express it as such. But decades after its establishment, its Judges are part of the machinery it is the lodestar by which they performance was lack-lustre and of authority within the State and navigate.” during the Emergency the judges as such cannot avoid the making were sycophantic to Indira of political decisions.” The Griffith thesis is that the Gandhi. Another example is the judges see themselves as occupy- US Supreme Court, which in the Griffith refers to a survey con- ing a key position in the struggle Bush v. Gore case in 2000 and in ducted in the United Kingdom in to enforce the law, and are always the subsequent 9/11 and 1994 which revealed that the av- conscious of the dangers which Guantanamo cases decided bla- erage age of a Law Lord was 66 they believe will follow if they do tantly in favour of the Bush ad- years, a Court of Appeal judge 63 not support the powers of the po- ministration, at the cost of its pres- years and a High Court judge 57 lice. He cites a study in 1994 tige. years. There was no woman Law which analysed 13 appeals from Lord, only one in the Court of Northern Ireland and showed The British Appeal and six in the High Court. that the House of Lords found for experience Their educational background the government in all but two was 80 per cent public school and cases. The brevity of the judg- Professor John Griffith, formerly 87 per cent Oxbridge. Judges are ments, the small amount of au- of the London School of Econom- thus the product of a class, and thority cited and the swift dis- ics, first published the “Politics of share the characteristics and felt the Judiciary” in 1977 which en- necessities of that class. This is not tered its fifth edition in 1997. It the stuff of which reformers are became an instant classic on how made, still less radicals or non- the senior judiciary in Great Brit- conformists. According to ain, constrained by their own self- Griffith, the judges of those three imposed limitations, frequently Courts which make up the higher fail in their duty as protector of judiciary, have by their education liberties. Griffith argues that the and training and the pursuit of traditional view of judges decid- their profession as barristers, ac- ing disputes between individuals quired a strikingly homogeneous

Our best hope is in the ballot box of 2012 or 2013 and not in the Courts.

Aliran Monthly : Vol.29(5) Page 9 missal of arguments based on ons under the throne, as Francis take comfort from Griffith’s study. human rights were common fea- Bacon aspired centuries ago. This is a worldwide phenomenon. tures in the 13 appeals. The study Griffith’s final words are an eye- As pillars of the establishment, it concluded: “By consistently up- opener: is a universal principle that judges holding governmental action in cannot be trusted with the liber- Northern Ireland, the House of “That this is so is not a matter for ties of the citizen! Lords has ruled itself out of play- recrimination. It is idle to criticise ing a role in the conflict”. institutions for performing the Since they have life-time appoint- task they were created to perform ments through constitutional se- In Griffith’s view, judges value and have performed for centuries. curity of tenure, judges are not stability above all as necessary for The principal function of the ju- concerned with public opinion as the welfare of the people and the diciary is to support the institu- members of the two other branches well-being of society. Government tions of government. To expect a of government are. Members of the represents stability and have a judge to advocate radical change Executive who are also members very considerable interest in pre- is absurd. The confusion arises of the Legislatures in democracies serving it. Wherever governments when it is pretended that judges have to face the electorate periodi- or their agencies are acting to pre- are somehow neutral in the con- cally. Thus, even if Malaysia does serve that stability – call it the flicts between those who chal- not enjoy a true and functioning Queen’s peace, or law and order, lenge existing institutions and democracy, at least the electorate or the rule of law, or whatever – those who control those institu- has an opportunity every four to the judges will lend their support tions.” five years to vote their politicians. and will not be over-concerned if In the politically awakened post- to do so requires the invasion of The Malaysian March 2008 Malaysia, where individual liberty. Griffith argues Judiciary opinion has significantly that on every major social issue changed, perhaps our best hope which has come before the British Without even taking into account is in the ballot box of 2012 or 2013 courts in the final decades of the the performance of the judges in and not in the Courts. Expecta- 20th Century, the judges have sup- the Perak crisis, it is easy to apply tions of the judges should be low- ported the conventional, estab- the Griffith thesis to the Malay- ered. The citizen’s naïve idealism lished and settled interests. And sian judiciary. The 50-year track should be replaced by realpolitik. they have reacted strongly against record of the courts since Merdeka Ambition, elevation to the higher challenges to those interests. The as the constitutional bulwark be- tiers and promotion to the four result is a “conservative” politi- tween Executive and citizen has heads of the Courts – all of which cal philosophy. been dismal. The pragmatic con- lie in the gift of the Prime Minister servatism of the judges, resulting and the Conference of Rulers – Judges are concerned to preserve in a very strict “hands-off” policy, should be kept in mind when and protect the existing order. “In has been perceived as their abdi- cases that go to the heart of Gov- the societies of our world today, cating their constitutional duty in ernment are heard by judges with judges do not stand out as protec- dispute resolution. Whether it is human foibles. The tragedy is that tors of liberty, of the rights of man, their reluctance to protect detain- no other branch of government of the unprivileged, nor have they ees under the harsh provisions of can either properly discharge the insisted that holders of great eco- the Internal Security Act, 1960 judiciary’s duty as constitutional nomic power, private or public, and other preventive detention arbiters or resolve individual should use it with moderation”. laws, or the Salleh Abas and five grievances like Courts can, which Regardless of whether a society is judges cases, the Ayer Molek case, therefore remain unfulfilled by democratic or otherwise, the judi- the Anwar Ibrahim prosecutions default. q ciary has naturally served the pre- or the latest Perak constitutional vailing political and economical crisis, both informed opinion of Tommy Thomas is an forces. Whether it is matter of lack- the Bar/international legal bod- advocate and solicitor. ing personal courage or other- ies and public opinion have been wise, judges are certainly not li- critical of our judges. But we must

Aliran Monthly : Vol.29(5) Page 10 HUMAN RIGHTS Human rights and criminal justice Set up a Law Reform Commission to look into and update our outdated criminal laws by Hamid Ibrahim

he United Nations re- TT solved that member TTT countries should establish their own Human Rights Commissions. As a result of this resolution the Malaysian Human Rights Commission Act was passed in 1999. But if one looks at the Act closely one would find a lot of discrepancies. Sec- tion 2 the Malaysian Act defines ‘human rights’ thus: “human rights refers to fundamental liberties as enshrined in Part II of the Federal Consti- tution.

On the contrary, The Indian Hu- man Rights Act 1993, s.2 defines been amended. (2) the right of a person not to be ‘human rights’ as follows: deprived of life or personal “(d)... “human rights” means Tun Dr. Mohd Suffian, in an ar- liberty save in accordance the rights relating to life, lib- ticle in the Current Law Journal with law; erty, equality and dignity of the (1983) that Part II, dealing with (3) the right to habeas corpus; individual guaranteed by the Fundamental Liberties guaran- (4) the right to live as a free per- Constitution or embodied in tees the citizen - and in many cases son not in slavery; the International Covenants the non-citizen also - certain po- (5) protection against retrospec- and enforceable by courts in litical and legal rights, in some tive criminal laws and re- India”. cases subject to exceptions. Some peated trials; of these political and legal rights (6) equality before the law and Fundamental liberties are: the equal protection of the provisions amended law; (1) the right of the citizen to live (7) freedom of speech, assembly Articles 5 to 13 contain liberty pro- anywhere in the country, the and association; visions. Almost all these Funda- right to return, the right not to (8) freedom of religion, though Is- mental Liberty provisions have be banished; lam is the religion of the Fed-

Aliran Monthly : Vol.29(5) Page 11 eration; Tun Suffian take at the national level all nec- (9) the right not to be deprived of essary measures for the one’s property save in accor- realisation of the right to develop- dance with law and the right ment, and are under a duty to un- to compensation where one’s sure, inter alia, equality of oppor- property had been compulso- tunity for all in their access to ba- rily acquired or used; and sic resources, education, health (10)the right of the citizen not to services, food, housing, employ- be discriminated against in ment, and their fair distribution public education on the of income. It is also important that ground only of religion, race, effective measures should be un- descent, or place of birth. dertaken to ensure that women have an active role in the devel- “All these rights, and they are opment process. human rights, are constitutionally their own legal system, they main- protected rights and they have tained these attitudes and the Denigrating factors been written into the constitution structures, procedures and con- to emphasise their importance, for cepts that went with them. The Take the bureaucracy. They are being in the constitution they are result of all of this was that the there to serve the people but they more difficult to abridge than law as it existed in the field was often seek to build little empires rights protected by ordinary law. very different from the law as it of power for themselves. They are was depicted in the books. often oppressors of the people, not “These rights are in the main to so much because they deliberate secure legal justice. But we on the The teacher of human rights set out to be so but because they Commission know that equally needs therefore to stress to his stu- have a sense of comradeship, soli- important is the need to secure for dents the principle set out in Ar- darity and self-importance which man everywhere another kind of ticle 2 of the General Assembly can make them overlook the needs justice, namely political, economic Resolution, namely, that all hu- of the people they should be serv- and social justice - a need which man being have a responsibility ing. Bureaucratic abuse of power constantly exercises our mind - so for development, individually needs to be watched in every ju- that man can live a full life with and collectively. It is part of one’s risdiction, and the most effective enough to support himself and duty to one’s community which agencies to do this are human his family in dignity and to pro- alone, in the language of Article rights workers. The most effective vide opportunities for his children 2, ‘can ensure the free and com- way to prevent this is by spread- and generally free from want and plete fulfillment of the human being an awareness of their rights fear.” ing’. Especially with influential among the populations through audiences such as law enforce- human rights teaching. Human Rights concepts, by Jus- ment officials, bureaucrats and tice C.G. Weeramantry, who was teachers, it is important that this Lawyers’ role the Vice President of the World aspect be stressed, for they are in human rights Court in the Hague. under a special duty to act affir- matively to further this right to de- In this regard it is strange but true He wrote:wrote:He velopment. One cannot pretend to that those who ought to be the lead- be a promoter of human rights if ers in the dissemination of human “All this way reinforced by legal one ignores this duty to promote rights knowledge, namely the le- personnel -judges and lawyers - actively the right to development. gal fraternity, are often rather ill- who came from an affluent back- informed about human rights. ground and were steeped in the States’ duty This is the result of the black-let- legal learning of affluent societies. ter legal tradition which has Even when colonial peoples won In achieving this goal of develop- dominated legal education in their independence and manned ment, States have a duty to under- many jurisdictions. There is still

Aliran Monthly : Vol.29(5) Page 12 a widespread feeling in the legal engaged in the process of devel- ances for the elderly, citizen crime- community that black-letter law is oping the law. They do not merely prevention programmes, citizen the only proper law worthy of decide cases in the light of exist- patrols, advisory services, com- lawyers’ study, and that philo- ing law. munity-police workshops, in- sophical and aspirational volvement of traditional local thought in relation to such mat- The US Supreme Court plays a organisations and village commu- ters as rights and duties may be notable role in this regard, and in nities – all these areas offer enor- appropriate to other studies many other jurisdictions the mous opportunities for the incor- which are strictly legal. judges do likewise. For example, poration of traditional values. the Indian Supreme Court has Judges’ role in given much leadership in devel- Third World situations developing oping new human rights-based human rights remedies to assist the average citi- It is necessary, however, to draw zen. In other words, the judge to- special attention to the manner in It may seem strange also that we day has an important role in ad- which, in many Third World situ- should have to talk about teach- vancing human rights, and judges ations, the established legal order ing human rights to judges. Un- should be conscious of this and reinforces iniquity in a manner not fortunately it so happens that should be equipped to discharge often realised by the well-mean- many members of the judiciary – this role adequately. ing participants in the justice sys- particularly those who are more tem. This is indeed the condition senior – had their legal education, Crime and correction in which the majority of the and indeed their legal practice, in world’s population finds itself days when human rights’ learn- An important practical way of and is one of the great human ing was not a subject of study. The seeking congruence with tradi- rights issues of our time to which traditional view a generation ago tional culture comes from the area scarcely any attention has been was that law of property so-called of crime and correction. In this paid. was the lawyer’s proper sphere of area, Western-based concepts of work and that such matter as hu- imprisonment are proving inad- Justice for some is not justice for man rights pertained more to the equate in many societies to pro- all. The formal structures of Third field of morality and aspiration vide the element of correction and World legal systems often succeed than of law. Today, the discipline reintegration into society to which in achieving the one, but fail sig- of human rights is directly rel- traditional cultures attached great nally in achieving the other. Some evant to the work of every lawyer importance. of the factors resulting in this situ- and judge, and there are statutes ation are: in most countries which translate Each Nation must mould and human rights principles into the adapt the ideas and concepts of (a)Members of legal professions law of the land. community-based corrections to and judiciaries are dawn from the the traditions of it own society. The upper crust of such societies and When I was a young lawyer I mere acceptance of the imprison- tend naturally to reflect the val- would have hesitated to cite the ment notion of Western penal ju- ues and interests of that class. Universal Declaration of Human risprudence, isolated as that con- Rights to a judge, for fear that I cept is from the community, is of- (b)These persons are, by and large, might be told it was an ten of negative value. Extramural oriented to Western value sys- aspirational and not a legal docu- penal employment, techniques of tems. Their training as lawyers ment. Today, the status of the Uni- rehabilitation, reconciliation, and has largely been in Western coun- versal Declaration of Human acceptance into the community, tries or in Western-oriented law Rights is such that is it universally conciliation with the victim and schools. There has been an alto- looked upon as laying down a the victim’s family, suspended gether insufficient development of minimum universally recognised sentences, community service, a jurisprudence suited for Third set of norms by which all laws can public participation in criminal World conditions. These persons be tested. Moreover, judges are justice administration, reassur- tend also to be urban oriented,

Aliran Monthly : Vol.29(5) Page 13 whereas the vast mass of the of legal expertise for tax avoid- The United Nations populations of Third World coun- ance. In affluent countries there Charter tries are of an agrarian back- may well be counter action ground, with needs which have through other lawyers employed In 1948, the Universal Declaration traditionally been met through a by consumer groups or other in- of Human Rights Charter was different value system. terest. In Third World countries adopted as a “common standard such prostitution of legal exper- of achievement for all peoples and (c)Court structures have a formal tise tends to occur without any all nations”. Today, the UDHR and expensive nature. The rich effective counterbalance. has been supplemented by a num- landowner has traditionally used ber of international instruments. these expensive structures to de- (h)Legal professions have a tradi- Malaysia is a signatory to the prive the poor peasant of his land. tionally self-centered nature. In the UNDHR since 1957 Appeals all the way up the hier- Third World. As elsewhere, the archy of courts – if need be, to the law is one of the principal high- Of all major international human Privy Council in colonial days or roads to fame and fortune. The rights instruments, Malaysia has to the highest court of appeal to- busy lawyer, engrossed in his ratified only five namely day – will keep his poor adver- work, chases the phantom of pro- sary at bay. fessional success, removing him- • Convention on the Elimination self progressively from the so- of All Forms of Discrimination (d)Legal rules are oriented to suit cially oriented issues which ought Against Women concepts of property. This is the to engage his attention as a leader • Convention on the Rights of the basis of the legal principles, both of his community. At the peak of Child civil and criminal, which consti- his power and influence he is of- • Convention on the Nationality tute the legal systems of these ten phenomenally removed from of Married Women countries. the real causes and concerns of • Convention on the Prevention his people. and Punishment of the Crime (e) (Not applicable) of Genocide Such factors, as I have said, exist • Supplementary Convention on (f)Judiciaries and legal systems in varying degrees in nearly all the Abolishment of Slavery, the are being subordinated to politi- legal systems. For the majority of Slave Trade and Institutions cal power – a phenomenon which mankind legal systems can some- and Practices similar to Sla- is occurring increasingly today. times be obstacles rather than aids very The traditional insulations of ju- on the pathway to human rights. diciaries from political power Malaysia has yet to ratify two very have been largely eroded, if, as in It is well for lawyers and judges, important Instruments namely some countries, they have not al- who so often speak and write of together vanished. The courts, human rights, to turn the spot- • International Covenant on once at least theoretical symbols light inwards upon themselves. Economic, Social and Cultural of the individual’s independence, They will from time to time find Rights (ICESCR) are in many countries becoming themselves cast in the role of deni- • International Covenant on the very instruments by which grators rather than upholders of Civil and Political Rights human rights denials are but- human rights.” (ICCPR) tressed and enforced. (*Justice C.G. Weeramantry in Jus- Both ICESCR and ICCPR came (g)Legal professions are being tice Without Frontiers: Furthering into effect in 1976. Calls for ratifi- used for anti-social purpose. This Human Rights 1997 Vol.1 – cation has been made by numer- occurs in all countries, as for ex- Kluwer Law International- The ous quarters including the parlia- ample when legal expertise is Hague. Justice Weeramantry was mentary opposition leader, who employed to bind the poor bor- the Vice President of the Interna- moved a parliamentary motion in rower in a hire purchase or stan- tional Court of Justice at the 1976 and by the Malaysia Human dard form contract, or in the use Hague) Rights Commission in its year

Aliran Monthly : Vol.29(5) Page 14 2000 Annual Report. There was not have a single Ma- Procedure Code and the Penal laysian member in the Reid Com- Code be amended and improved As of 2002, there were 192 coun- mission: all the five members of in line with the 2lst century con- tries in the United Nations - rati- the Commission were foreign ditions. Many Commonwealth fied ICESCR, 144 for ICCPR 142. Judges. countries, e.g. the United King- The Malaysian government dom, Australia, Canada and In- should take steps to ratify the Therefore it is proposed that a dia have already amended their ICESCR and ICCPR and ensure Constitutional Law Reform Com- laws in line with modern-day con- domestic law compliance with the mission should be established ditions. UN Conventions. In this age of consisting of Malaysians of vari- • Part II of the Federal Constitution globalisation, international law ous denominations, experts in on Fundamental Liberties should on human rights is becoming in- constitutional affairs. In 1957, be amended to bring it back to its creasingly relevant. Ratifying Malaya did not have persons with original state in 1957. these two covenants will promote constitutional expertise. Today • Malaysia should ratify the Inter- human rights and avoid the recur- the story is different. There are national Covenant on Economic, ring violation of fundamental lib- more than 100 experts on Consti- Social and Cultural Rights erties in Malaysia. tutional Law. Appoint a Law Re- (ICESCR) form Commission to review the • Malaysia should ratify the Inter- Detention without trial is a gross Federal Constitution comprising national Covenant on Civil and violation of human rights local legal luminaries. Political Rights (ICCPR) • Malaysia should ratify The Con- Arbitrary arrests and detentions It is clear from the above that the vention against Torture and other without trial under laws which three major criminal laws - the Cruel, Inhuman or Degrading were formulated to serve a real Evidence Act , The Criminal Pro- treatment situation of emergency many de- cedure Code and the Penal Code - • Malaysia should legislate the cades ago only disgrace Malaysia were imported from India during right to information and privacy in the eyes of the world. Detention the 19th century. We are now in laws without further delay. without trial is a gross human the 2lst Century. In this over hun- • Repeal the Internal Security Act, rights violation. dred-year period the laws have 1960 and the Emergency Regu- been changed/reformed in the lations which are still in force - It violates Article 9, 10 and 11 of United Kingdom, Australia, the and which allow a state of emer- the Universal Declaration of Hu- United States and the Republic of gency to be declared at any time. man Rights 1948 and Article 8 of India. Therefore, the time is more This is most dangerous in a De- the covenant on Civil and Politi- than ripe for a Law Reform Com- mocracy: (a) the Public Order cal Rights and the Federal Con- mission to be formed to look into (Preservation) Ordinance (1958), stitution which guarantees the these three major outdated crimi- (b) the Official Secrets Act 1972 process and security of persons. nal laws with a view to and (c) the Essential (Security modernising them. Cases) Amendments Regulations Law Reform (1975). The first Prime Minister, Commission Almost all democratic countries Tunku Abdul Rahman, promised of Malaysia have set up Law Reform Commis- in Parliament that the ISA was sions whose function it is to look meant for the communists and not In 2008 Malaysia celebrated the into in detail each and every old the politicians. q 50th anniversary of Indepen- statute and to improve and reform dence. During these 50 years, the and repeal it where necessary. Federal Constitution had been Professor Hamid Ibrahim mutilated through amendments Denning’s Research Centre of is the Executive Director of nearly 50 times. Another irony is Malaysia recommends that: the Denning’s Research that the Reid Commission Report Centre, Malaysia. – the Document of Destiny - was • The 19th Century Statutes – the formulated by Foreign Judges. Evidence Act, 1950, the Criminal

Aliran Monthly : Vol.29(5) Page 15 DEVELOPMENT Take action against steep hill-slope projects

Focusing on stabilising steep slopes alone is like giving medication to a dengue patient without finding out the source of the disease by George Aeria

Dear YB Chow and YB Phee

TBRA notes the press article in The George Aeria, the chairman of the Tanjung Star (25 June 2009) with some con- Bunga Residents Association writes to Penang cern as it only talks about rectify- ing the steep slopes and that state government exco members Chow Kon TBRA has not heard of any other Yeow and Phee Boon Poh to highlight the resi- measures to be taken despite the dents’ deep concerns about property develop- submissions of memorandums, letters, police reports and other ment projects on steep hill slopes in their area. meetings with state government officials from February to June 2009.

We have written officially to our state government via YB Phee and the City Council (several times - be it through our memorandum and other letters, besides police reports) stating the following:-

a. That the geotechnical report is either defective (as the geotechnical report covers only Lot 4189 while land development work is ongoing on at least three other lots i.e. Lot 4165, 4166, and 4188), OR b. That MPPP is so slipshod or allegedly corrupt that there is no control over the land devel-

Aliran Monthly : Vol.29(5) Page 16 opment work to the transgressions into point where an the other lots (e.g. us- NGO like TBRA ing Bolton Surin as a has to come in to in- case study) form the MPPP of d. that action be the land develop- taken against the ment work on the people in MPPP who other plots have failed to properly c. That MPPP is not monitor the project to able to enforce its the point of causing stop work order in distress to residents - May and early June floods, flying rocks, 2009 with ongoing dengues etc. blasting work still e. what happens occurring. Proof after the developer via photograph moves away? Who available and will be made persist and must be addressed monitors and maintains that known shortly. failing which this error against now Bolton and MPPP-caused d. That MPPP has not monitored nature and the residents will oc- slope in Chee Seng Gardens the work site well thus caus- cur again and again. Stabilising which is now so steep - class ing floods, flying rock, dengue the slopes is the responsibility of IV? outbreak, the removal of soil/ the developer and City Council f. will MPPP be managed better, earth from site. (which approved the project in the and if so, what measures have e. That MPPP should not have first place). It is not something we been put in place (call it SOPs, approved this project in the should be grateful for. It is their if you like) so that the grave first place as it is in contraven- job to get it done. Do it quickly be- error of approving steep and tion of the June 2002 guidelines fore it slides down and kills resi- dangerous hill-slopes stops as issued by the Ministry of dents. once and for all? Science and the Environment. Thereafter, we reiterate that the We will appreciate a response To date, we have not received any issues at hand today as clearly from our CAT State Government response from our CAT state gov- seen via the dangerous hill slope by tomorrow (26 June 2009) as we ernment. If at all you declare your projects such as those like Bolton have not received any formal re- state government to be transpar- Surin, Ivory, Solok Tan Jit Seng, ply from our state government ent, then perhaps an official reply and Diamond Villa are:- since we submitted the memoran- to address our residents concerns dum and our petitions to YB Phee via our memorandum in April a. a complete and total ban of all (and YB Chow and CM, via YB and our subsequent letter to you Class III and Class IV hill- Phee) at the State Assembly on 27 on 2 June 2009 should be forth- slopes in Penang, and a decla- April 2009 and our subsequent coming. ration by our CAT DAP State letter dated 2 June 2009. Should Government accordingly. we still not receive an official re- Just addressing the steep slopes WALK YOUR TALK. sponse, TBRA will take whatever is like giving medication to a pa- b. that action be taken against the other action deemed necessary to tient for dengue without resolving people in MPPP who have highlight this matter in the press the bigger issue of the source of failed in their duties in approv- (on the inaction of our state gov- the dengue. ing these dangerous type of ernment) as well as to make a re- projects (e.g using the Bolton port of possible corruption to the TBRA expects that work to Surin as a case study) MACC regarding the manner in stabilise the now very steep and c. that action be taken against the which the MPPP approved this Class IV hill-slope is to be done. people in MPPP who have and other similar potentially dan- However, the larger issues still failed to monitor and stop the gerous hillslope projects.q

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Aliran Monthly : Vol.29(5) Page 18 BOOK REVIEW Vistas of detention... voices of freedom

Long years have passed, yet the fire that burns in their hearts remains aglow by Tan Pek Leng

heir bodies were shackled but their TT thoughts roamed free … political prison- TTT ers detained without trial after successive waves of mass arrests sought sanity in their solitary cells by committing to paper poetry, prose and song that affirmed their unwavering beliefs and undaunted spirit. They drew inspiration from kin- dred souls who had given their lives and strength to the liberation of mankind; they resolved to stay the course until the cruelty and evil that are encap- sulated in the likes of the Internal Security Act (ISA) are no more. Truly, for these uncommon beings, the human mind cannot be contained in narrow cells.

Seven courageous individuals

Decades after they were silenced by being locked away or forced to flee, seven of these brave men and women have found voice in a slim volume, Our Thoughts Are Free: poems and prose on imprisonment and exile. Among them, the late James Puthucheary, author of the seminal Ownership and Control of the Malayan Economy, which was written while in detention, had the distinction of being imprisoned without trial three times, under both the colonial activists in Lee Kuan Yew’s infamous Operation and Lee Kuan Yew regimes – in 1951, 1956 and 1963 Cold Store on 2 February 1963. (Operation Cold Store – spending a total of about five years in jail. was aimed at crippling the Barisan Sosialis, which represented a real threat to the People’s Action Party Said Zahari, an icon in the world of journalism and (PAP) government, by arresting its leaders and key literature, was banned from Malaysia for leading associates like trade unionists, many of whom were the Utusan Melayu strike in 1961 which sought to erstwhile “comrades” of Lee Kuan Yew.) He was prevent the takeover of the newspaper by Umno. A not to be released until 1980. day after he took up the post of President of the Parti Rakyat in Singapore, he was rounded up together A third contributor, the late Ho Piao, was a young with more than a hundred other social and political idealistic trade unionist “in search of a purpose and

Aliran Monthly : Vol.29(5) Page 19 sense in life” when he too became a victim of Opera- The last two contributors, Teo Soh Lung and Wong tion Cold Store and would spend 19 of the prime Souk Yee fell prey to Operation Spectrum which saw years of his life behind bars. The length of his deten- 22 Roman Catholic Church social activists and pro- tion was exceeded only by that of Chia Thye Poh’s, fessionals being accused of involvement in a Marx- which lasted 21 years. ist plot to subvert the Singapore government. Teo Soh Lung’s crime was deigning to dedicate herself Yet another trade unionist, Tan Jing Quee, was de- to providing legal aid to the needy while Wong Souk tained in Operation Pechah in October 1963 aimed at Yee was detained twice for a total period of 14 breaking up the 48-hour general strike called by the months, first for giving vent to her creative energy Singapore Association of Trade Unions – of which through the stage, and subsequently for refuting her he was a leader – to protest against the deregistration “TV confession”, which she surmised had been dis- of trade unions by the government. This detention torted by the Internal Security Department and the in Changi Prison lasted three years. In 1977, Tan Singapore Broadcasting Corporation. Jing Quee was arrested again and incarcerated for three months on allegation of being involved in the Systematic programme campaign to expel the PAP (Singapore’s ruling People’s Action Party) from the Socialist Interna- As another former detainee, Koh Kay Yew, explained tional. at the Malaysian launch of the book on 16 May 2009 (it was launched in Singapore on 28 February, 2009), Our Thoughts Are Free also features the poems and the ISA detentions were meant as pre-emptive strikes songs of Francis Khoo Kah Siang, who was a target to nip all dissent in the bud. The aim was to “suit- of arrest in the 1977 swoop. As the Special Branch ably neutralise” these “enemies of the state” within (SB) officers banged on his door and waited outside three months and have them appear on television to his home, Francis Khoo remained silently within. recant their “wrong doings”. Those who refused to The SB men finally left after an all-night wait, think- do so had to pay the price in the form of years of their ing he was not in. Thus was he able to escape arrest; lives being snatched away. As we had noted earlier: then taking advantage of the Chinese New Year Chia Thye Poh, 21 years; Ho Piao, 19 years; Said crowd at the causeway to make his way to Malaysia Zahari, 17 years; and others like Dr Lim Hock Siew, and then London – barely two weeks after his wed- 19 years, and Dr Poh Soo Kai, 16 years. ding. He has been in exile since. He lamented that when he looked at photos of his wedding dinner, he During their incarceration, the state conducted a couldn’t help but note that many of the friends who systematic programme, including physical torture, graced the occasion were subsequently detained. to dehumanise and break the detainees. Strong as

Aliran Monthly : Vol.29(5) Page 20 they may be, virtually all the detainees suffered post- for months in solitary, traumatic disorder, and some of them went through it was a source of anxiety; mental breakdowns, as Koh Kay Yew related. for hours to this moment, it is endless excitement On the personal level, the brief and sparse encoun- ters with loved ones were bitter-sweet as James then came news of Puthucheary lamented: the arrival of my little one. (Born Unfree, 22 May 1963. See full poem on They will not let you stay or let me go next page) Come over with laughter and chatter The longing, the anguish of parting These men and women whose only offence was to I can do nothing but watch you go champion the cause of social justice were deprived (Longing, 22 November 1958. See full poem of the opportunity to live a full and meaningful life. below) Their daily pursuits were reduced to looking for- ward to a “few minutes of fresh air and exercise” And the prolonged separation was agonising, as and the pink packets of “roast kachang and khana Said Zahari wrote in a hari raya card to his wife: and cheap sweets” which they were allowed to purchase “from Saturday canteens”. Such were “life’s How cruel, how inhumane! luxury within these gray walls”. So high, so huge this partition between us Standing their ground For so long! (Tears, 20 November 1969) And yet, they did not languish in despair. They were reining in their resolve to fight another day or cajol- Perhaps even more distressing was the anguish that ing others to join their crusade. Said Zahari stood engulfed him while he awaited news of the birth of his ground despite the relentless attempts at break- his child three months into his detention: ing his spirit:

Longing

They will not let you stay or let me go Come over with laughter and chatter The longing, the anguish of parting I can do nothing but watch you go.

Time knows nothing of love and sorrow The clock is merciless, relentless And hurries along without pity I can do nothing but watch you go.

Could my heart make the clock go slow Then impale it on the minutes hand And let my heart tick with the clock I can do nothing but watch you go.

Go, go, softly unto the breeze, go Let me drink in deep your fragrance And await in the evening wind For I can do nothing but watch you go.

22 November 1958

Aliran Monthly : Vol.29(5) Page 21 Born Unfree

not that I was not hungry I refused the food; nor that I was not sleepy I kept awake. then came the news of my ears keep hearing the arrival of my little one. the cry of an infant. I am the father for months in solitary, robbed of my freedom It was a source of anxiety; whose world has shrunk for hours to this moment, into a dark little dungeon. it is endless excitement. my child, just born into a world yet unfree

22 May 1963

the day before you heard my protest There is a certain immortality yesterday you heard my appeal In your tenacity, your courage – today you see my hatred Resolute, unyielding, pure, and wait Turning the wheel of solitary decades for tomorrow when I shall act Time, like flowing waters Moves relentlessly on, never retreating, my decision has been made Until an irresistible tide shall rise a resolve has been chiseled To propel the human will to overcome. this cruelty (For Chia Thye Poh, July 2002) this evil can no longer be allowed And James Puthucheary memorialises his dear I shall oppose it with all my strength friend and comrade, William Kuok, who gave his (Resolution, 1963) life to the anti-colonial struggle and lies buried in an unknown grave in the jungles of Pahang, thus: And James Puthucheary exhorted a loved one: We will not weep, not even a drop … if you feel for me, then with me call Or hang our heads down or beat our breasts Call to all those who live to be free For you have lived your life in full, not And not contain human minds in narrow cells Seared by the shame of a cowardly past. Who risk death that others may live And with them choose to die if nothing else. Long years have passed, yet the fire that burns in their (The Steel Door Opens and the Warden Cries, 1952) hearts remains aglow, the bonds that bind them remain as strong. The intimate crowd of former detain- Always, they found strength and inspiration in the ees, their friends and family who travelled from as far fortitude of their comrades who stayed true to their as London, Hong Kong and Singapore to attend the beliefs and convictions. Tan Jing Quee paid tribute launching of Our Thoughts are Free had come to keep to Chia Thye Poh and found: faith with each other and to affirm that as long as democracy continues to be “deformed” in Singapore, their quest for reform would not cease. q

Aliran Monthly : Vol.29(5) Page 22 DEMOCRACY ‘Prophets of doom’ provide hope

Dissenters, critics, whistle blowers and ‘prophets of doom’ are essential cornerstones for building an accountable and just democracy. by Angeline Loh

ublic perception of PP NGOs such as Aliran, PPP I’m told is, that they are too opposition support- ive. That superficial popular per- spective is probably because such organisations and individuals linked to them frequently speak out when they perceive inequality and injustice by the establishment’s machinery against the frequently suppressed political opposition or marginalised communities.

This popular perception, held for 30 odd-years by pro-establishment organisations and individuals, comes as no surprise when Aliran and like-minded organisations have for a similar time span remained independent and critical of ruling party politics and policies. Such policies have in the long run created an 8 March 2008: A landmark election epidemic of corruption, destruc- tion of the rule of law and a grow- and critics not taken the respon- disseminating half-truths or out- ing incidence of violence on civil- sibility of voicing their concerns right propaganda? The main- ians by security enforcement bod- about the existing system and de- stream media have frequently, ies. manded change for the good of all conveniently neglected their duty Malaysians? Would people realise to report truthfully things deemed Would 8 March 2008 have been a the discrepancies and injustices unfavourable to the establishment landmark election year had these committed in secret if the main- through news blackouts and self- “prophets of doom”, dissenters stream media remain cowed into censorship amongst other things.

Aliran Monthly : Vol.29(5) Page 23 Fortunately, we have been saved tice and fairness. We have been fed with conserva- from becoming completely reliant tive and extreme ideas and half on submissive and near syco- Malaysians wanted change and truths by media controlled by re- phantic media through advances they got it. Do we realise what we pressive laws and rendered sub- in information technology, in- are asking for and the implica- servient to the powers that be. The creasing the potential for democ- tions of it? More importantly, do double standards practised go racy in this country. If not for the we know why we want change or unchallenged by a majority of us, online critical discussion and ex- what the requirements of a just de- in mute or grumbling acceptance. ercise of freedom of expression in mocracy are? By this, we surrender control of cyber space, more Malaysians our lives to the political whims would be blindly supporting a “Dalam belenggu and fancies of those in power. virtually totalitarian government kejahilan” in feudal subservience and sub- (In the shackles of The powers that be tell us that to missiveness. Is this what Malay- have a voice is to assimilate alien ignorance) sians want? culture; therefore the people should remain dumb. It is un- The answer is obvious from the For the past 51 years or so, what Malaysian to be open about our results of the 8 March 2008 elec- have Malaysians in general discontent when practices, poli- tion ‘tsunami’, the Permatang learned about democracy when cies and laws increase our suffer- Pauh by-election that put PKR we have been living within a ing and make the standards and leader Anwar Ibrahim back in pseudo-democracy? Education, quality of our lives worse than Parliament, and the recent Kuala in our experience, has been mod- before. When we are on the brink Terengganu by-election victory for elled on a factory production line of starvation and deprivation, are Pakatan Rakyat. where absorbing wholesale and we expected to remain silently ‘regurgitating’ a vast amount of approving of the increased pros- Yet those undecided as to their what we have learnt by rote is perity of the wealthy and power- stance still bemoan in apparent thought to be the right way to ful at our expense? ‘righteous indignation’ the fact of learn. We have never been taught criticism of the ruling party and to examine critically the knowl- Our life experience as citizens of the workings of administration as edge we absorb. So, what exactly this country is not one of democ- anti-social and unhealthy for the have we learnt? racy but of feudal serfdom and tra- country. Why is this so, when at ditional autocracy. We do not the same time they continue to Our authorities have taught us know what living in a democracy enjoy the gains of democracy and that it is wrong to be different in is; all we have learnt is that such greater freedom that a number of character or hold a different opin- ideals are mere facades to please them have made no effort to bring ion from what they have ap- the outside world. about much less bothered to sup- proved and hold as true. In short, port in the past? Such chameleon- we have been inculcated with the What then is democracy? How like unscrupulousness and immo- inability to question existing con- does one live in a democracy? rality is the real danger to democ- servative structures, even if they racy, not the critics, dissenters or are unjust and violate our consti- March 8/08 the “prophets of doom”. tutional and human rights. – a rebellion or revolution? Those inclined to run with the We have also lived in mute accep- hare and hunt with the hounds at tance of prejudice and injustice Condemnation of dissent has be- the same time, serve to distort the against marginalised people and come an accepted reaction. Many concept of democracy by demean- those with the courage to defend would express uneasiness (even ing the necessity for checks and them. We live in fear of being pun- if secretly agreeing) with any idea balances to sustain a healthy ished, ostracised and imprisoned they think will attract adverse at- democratic political environment for shouting out against such im- tention or disrupt the status quo, anchored to a foundation of jus- moral oppression. no matter how realistic, logical or

Aliran Monthly : Vol.29(5) Page 24 just. In a devious way, dissent or cratic societies enjoy as of right. blessing in disguise and an op- criticism is interpreted as a per- portunity for us to review our sonal affront, especially in tradi- If Malaysians continue to hope for perspectives and perceptions of tional conservative thinking that external redemption and fail to the society we live in and want is inevitably authoritarian in char- see the need to realise their own to see in future. It is time to acter. Consciously or not, the herd inner strengths, weaknesses and widen our knowledge, examine mentality kicks in to preserve the powers to create an accountable our options, including those status quo and kill potential and responsible democracy, proposed by the dissenters and change. March 8/08 was only a reaction- critics that were condemned in ary rebellion, not a revolution. the past by the establishment as This apparent need for status quo subversive, unconventional and preservation and perpetuation Conversely, if March 8/08 is to be an alleged threat to those in reveals a deep-seated fear of a true turning point, then the cata- power. change. The change-agent, the lysts for change are necessary. We critics and ‘prophets of doom’ are have to question ourselves and The electorate need to educate held up as the evil ones who weigh the arguments advocated themselves to become less driven should be made an example of. by the critics, dissenters, ‘whistle by popular emotion and blind The whistle-blowers should be blowers’ and ‘doom mongers’ herd mentality. We have to silenced, if necessary. These who have all this while de- achieve the capacity for critical threaten not only the status quo manded the attention we have thinking and reasoning, and but also the vested interests of been too wary to give them. above all, honesty with our- those clinging to the reins of power selves. We must realise that our founded on a network of cronies The fear of dissenters and critics politics is driven by us, the and corruption. has become second nature to most People, with the political will Malaysians. We may boast our and determination to achieve We have taken the first step to- apparent liberalism and multi-ra- our goals, not by overlords and wards change; but is this enough? cialism, yet deep down do we truly managers whom we appoint. Still tipsy from our new found believe that boast? Is Malaysian The consequences of over-lord- ‘people’s power’, we are yet un- society prepared to be truly multi- ship, we know well by experi- clear what shape our democracy racial and equal? Only those who ence. We should stop hoping to will take. There seem to be no defi- have tested the water can tell how be saved by external forces. The nite guidelines or definitions as hot it is. capacity for self-determination to what democracy is in the Ma- is within us. laysian context. Some appear to If not for the dissenters, critics and believe that having the right to ‘doom’ mongers, March 8/08 and Thus, the dissenters, critics, freedom within a democracy is li- all other system changes in the whistle blowers and ‘prophets of cence to act irresponsibly or ille- world would never have hap- doom’ are essential cornerstones gally without consideration of the pened. The world would still be for building an inherently respon- rights of other human beings in as it was millennia ago where sible, accountable, transparent, society. Democracy is equated only the strong and powerful and just democracy. The impor- with anarchy. would thrive by exploitation and tance of these agents of change subjugation of the weakest and should not be under-estimated This appears to be the perception poorest in society. Terror would nor diminished, as it is they who of democracy promoted by the reign unchallenged and un- are the nation’s alarm system current federal administration to checked. when inequality and injustice justify repressive measures and arise or things go wrong in police brutality against Cornerstones society’s body politic. They main- defenceless citizens. It is an excuse of a democracy tain our society’s equilibrium by to curtail freedom of expression, their advocacy. Without them, assembly and basic human rights The ‘March 8/08 Peoples’ Bal- democracy and justice cannot ex- that others living in more demo- lot Declaration for Change’ is a ist. q

Aliran Monthly : Vol.29(5) Page 25 COMMENTARY Traitors and terrorists Tok Bahaman, Mat Kilau, Tok Gajah and Tok Janggut were dubbed “traitors” by the British and Chin Peng and his followers were dubbed “terrorists”. by Dato Hishamuddin Bin Haji Yahaya

he controversy sur- TT rounding Chin Peng’s TTT return to Malaysia is not coming to an end yet. First it was the Court’s decision and then the Government’s decision that Chin Peng should not be allowed to return to his home- land. But a certain group it seems, is fighting for his return.

I am one of the victims of the communist’s terrorism of the fif- ties. My father’s house and his sister’s were razed to ashes by the communist terrorists, simply because my father was a Penghulu and deemed by the communists to be onthe side of the government. But what about my aunt? Prob- ably being the Penghulu’s sister was reason enough to burn her house as well. That was the depth of the communists callousness.

But a few years ago I happened to read Chin Peng’s Memoir. I cannot but conclude that Chin Peng was a freedom fighter, ranking with Tok Bahaman, Mat Kilau, Tok Gajah of Pahang and Tok Janggut of Kelantan who fought the British colonialists. The difference was Chin Peng chose the wrong path both in political philosophy and its modus operandi to force the British out of the coun-

Aliran Monthly : Vol.29(5) Page 26 try. It was not acceptable to the Abdullah C D and many others. We have lost our loved ones too Muslim populace as well as the during the Emergency years. But Chinese capitalists in this coun- But despite her “terrorism” as al- think of it, were they not incidents try. leged why was Shamsiah Pakeh of war, that happen everywhere and Musa Ahmad allowed to re- in the world whenever there is Tok Bahaman, Mat Kilau, Tok turn to this country? What’s the war. Those killed by the commu- Gajah and Tok Janggut were difference between them and Chin nists were mostly members of the dubbed “traitors” by the British Peng in the communist hierarchy? Armed Forces who were deemed and Chin Peng and his followers Musa Ahmad was the Chairman to protect the British government’s were dubbed “terrorists”. But he of MCP and Chin Peng was the interests, the very government they was a freedom fighter just like Ho Secretary-General. All of them were fighting against. Apart from Chi Minh who fought and de- applied to return on humanitar- the existing Armed Forces, the Brit- feated first, the French, and then ian ground: to spend their last ish made a special recruitment of the Americans, in Vietnam. The days in the country of their birth. the Special Constable (SC) whose world hailed Uncle Ho as a hero. main responsility was to protect What can Chin Peng do at his age? the British rubber estates. They A feared terrorist Furthermore, what can a man of were the British government’s op- Chin Peng’s age do to revive the eratives to all intent and purpose While Chin Peng, towards the end MCP? And if there is an iota of and the communists saw them as of the Emergency Years decided evidence against him, detain him tools and collaborators of the im- to settle in Thailand, Musa under the obnoxious ISA. Is not perialists. Ahmad (the Chairman of MCP) the ISA a potent political weapon and Shamsiah Pakeh decided to of the BN government. Should not Chin Peng settle in Beijing. By British ac- be forgiven? count Shamsiah Pakeh was a ter- Yes, a particular group may say rorist attached to the 10th Regi- the return of Chin Peng may re- Yes the communists occasionally ment in the jungle of Pahang. An vive the memory of bitter fighting destroyed our railway system and illusive and influential commu- with the communists. What more water supply which caused a lot nist who could disappear within for those who are still alive and of inconvenience and loss of rev- seconds of sighting her. She was who have been incapicated by the enue. But all of us know in war, shot many times but escaped un- loss of sights and limbs, or the loss work of sabotage is part of war scathed. She was rumoured to be of loved ones. games. The communists too suf- invincible. She was a terrorist fered death through hunger, when feared by the armed forces and a But why single out Chin Peng? the government decided to cut off reward put on her head, dead or Did not the Japanese soldiers who their food supplies by settling all alive. came to invade Malaya in 1942 the isolated villagers into con- commit untold atrocities, plunder- trolled areas now known as “New I happened to read Shamsiah ing, raping and killing innocent Villages”. But we cannot say that Pakeh’s Memoir too. By her ac- people including women and depriving the communists of sus- count she was never a children? How many innocent tenance was in violation of human terrorist.Throughout her jungle civilians were beheaded or put to rights, because the country was in days in Pahang, she was never torture and death in various a state of war. But once the war is armed, let alone harm, anybody. forms. How many civilians got over, all should be forgotten and Her responsibility was recruiting their tongues cut off and their forgiven. Should not Chin Peng cadres for the women’s wing of limbs severed? How many of our be forgiven? q the MCP. But her “terrorism” was parents and their parents had so much spoken about, that we their education interrupted be- Dato Hishamuddin Bin boys in Temerloh, Pahang, knew cause of the occupation? And Haji Yahaya, DIMP, SAP, her name well, along with other how many of us lost our grand- is a laywer and one time communists like Wan Ali (Kuala parents at the death railway in MP for Temerloh. Lipis), Manaf Jepun (Temerloh), Siam.

Aliran Monthly : Vol.29(5) Page 27 HEART TO HEART "What comes from the lips reaches the ear, what comes from the heart reaches the heart" - Arab proverb Time to abolish the ISA for good Not one person should be held in detention without trial as it violates basic human rights

y name is Norlaila Advisory Board has no power to lease of my husband and others MM Othman. I am a Malay- free detainees. It can only make who are enduring the same expe- MMM sian. I speak on behalf non-binding recommendations to rience. In my case, the most af- of my husband, Mat Sah the government. Appearances fected victim is my only son, bin Mohd Satray, who has been before the Advisory Board are a Suhaib, aged 16. The ISA sepa- detained by the Malaysian gov- farce because the authorities never rated Suhaib from his father when ernment under the Internal Secu- disclose evidence or documents to he was nine. For seven years, he rity Act (ISA) for more than seven the detainee. has been waiting every day for his years. Under the ISA, the govern- father’s release. It is very sorrow- ment can detain people without My husband was first accused of ful to see him grow up with this even the most basic of due process being a member of one terrorist uncertainty for such a long time rights. The ISA is extremely organisation, then later another. and being deprived of the love, broadly worded and allows for However during the seven plus care and guidance of his father. indefinite detention without trial. years that he has already spent in Not one person should be held in My husband was detained in detention, no evidence has been detention without trial as it vio- April 2002 and is now occupying produced to substantiate the ac- lates basic human rights. I am a cell at Kamunting Detention cusation. Instead, he is required appearing here today not just for Camp, deprived of his liberty. He to attend counselling the sake of my husband but also has never been charged and has programmes and encouraged to for all who continue to be de- not had the possibility of a fair admit the allegations against him. tained without trial under the ISA and public hearing by an indepen- The authorities have yet to prove and their family members. dent and impartial tribunal. he actually engaged in any illegal activity. Others arrested at the I call on the Malaysian govern- Under the ISA, the Malaysian ju- same time as him have long been ment to accept and implement the diciary has been systematically released. He has been told the recommendations of the Working excluded from playing any mean- only reason he is still detained is Group on Arbitrary Detention re- ingful role in ensuring that those due to my activism. questing the Malaysian govern- detained are treated in accordance ment to take necessary steps to with international human rights The Working Group on Arbitrary remedy my husband’s situation norms. There is no effective judi- Detention has stated that the de- to conform with provisions and cial review. Habeas corpus is only tention of my husband is arbitrary principles enshrined in the available on narrow and techni- and contravenes Articles 9 and 10 UDHR. q cal grounds. Judges cannot re- of the UDHR. I strongly urge the view grounds of detention and are Human Rights Council to visit not shown the purported evi- Kamunting Detention Camp and Norlaila Othman is in- dence against detainees. meet my husband personally. I volved in the Family Sup- call on the Malaysian government port Group of the Abol- The ISA allows for review of de- to facilitate this visit. ish ISA Movement tentions by an executive-ap- (GMI).(GMI).(GMI). pointed Advisory Board. The I hope the visit will lead to the re-

Aliran Monthly : Vol.29(5) Page 28 ACCOUNTABILITY Public procurement: Abuses and challenges It’s time to give the rakyat a preview of what ketuanan rakyat economic and social policies will look like by H A Lee

he Port Klang Free Zone I believe there is much more we of class F contracts. TT debacle showcases the can do to leverage the government TTT depravity of our clan- procurement system to broaden BN officialdom acknowledges destine system of govern- our development vision, besides that the system is broke, but has ment contracting and procure- ensuring contracts go to the one not indicated what specific policy ment, and will inflame the cause offering the best combination of and institutional reforms will be of open tenders. price and value. Governments pursued. The Mid-term Review of need to be bolder to say, if you want the Ninth Malaysia Plan an- No one can deny that transpar- to do business with us, who rep- nounced, without any details, ency and accountability are nec- resent the people and steward that “[t]he existing restructuring essary. But are these principles their trust, you have to aim to serve instruments to enhance and practices sufficient to achieve the greater economic, social, and Bumiputera participation in the Malaysia’s delicate imperative of environmental good. economy will be reviewed. These cultivating capacities efficiently will include the Foreign Invest- while distributing opportunities Since March 2008, alterations to ment Committee Guidelines, pub- equitably? the tender system, both in Pakatan lic procurement procedures and and BN administrations, offer the Industrial Coordination Act, Abuse of public procurement em- more procedural than substantive 1975.” bodies some of the worse elements change. Proposed and imple- of the NEP gone astray and ag- mented change amount more to We have enough information grieve current and future taxpay- repair and clean-up jobs than fun- about BN predilections, including ers with filthy stinking wastage damental reforms. the recent liberalisation of the ser- of their hard-earned dues. Costs vices sector, to extrapolate that must be cut, contracts must be One of the more publicised and much of the deliberation will re- bared, the public must be in- implemented changes to the gov- volve around ethnic quotas and formed. But, again, are these all ernment procurement process is ownership – and maybe make a that need to be fixed? the introduction of a lottery sys- few notes about corruption. tem for class F Bumiputera-only The problem is not only the cor- contracts. Chief Minister Lim NEP legacy ruption and pillage of public Guan Eng, to his credit, started the funds. We should also be ex- ball rolling on that, together with Some will advocate total elimina- ceedingly upset that the NEP a commitment to open tender for tion of ethnic quotas as the su- has inadequately fostered genu- larger projects. But BN can do preme solution and deem what- ine partnerships reflective of also, and perhaps out-gimmick its ever distribution of contracts as the our cultural diversity and has adversary. The Kuala Terengganu fair market outcome. In other failed to cultivate a responsible by-election grabbed headlines words, shock therapy. If ethnicity business ethic. with more online random draws does not matter, it should not fac-

Aliran Monthly : Vol.29(5) Page 29 tor into the selection process at all. We should recognise that open duces a change in mindset and tenders will make life harder for embraces broader social objec- The chambers of commerce met perhaps an influential and parti- tives while continuing to address Lim Guan Eng soon after his ap- san corps of contractors. They the failures of past policies. pointment as Chief Minister to should be pressed to perform and express their support for his not be coddled anymore, but they And that includes the ethnic di- open tender policy. The Penang should not be dismissed or alien- mension. The problem is not that Malay Chamber President ated. A lot is said about non-ra- ethnicity is part of policy; the prob- qualified his endorsement by cialism, and rightly so, but too lem is that it has consumed poli- asserting that there must be “a little about non-partisanship. In cies, which moreover have oper- level-playing field for all races”. this spirit, the concerns of cur- ated without clear rules. That is a curious statement; an rently Umno-affiliated business open tender policy would pro- must be given a fair hearing. Compelling change cedurally give every bidder equal chance and same treat- We may wish and declare that we So, back to the proposal of lever- ment. Of course, “level-playing are in a post-racial, post-NEP age, aging the government tender pro- field” is code for “do not side- but alas, the NEP legacy compels cess to compel reform. The unpar- line us”. The implicit warning us to deal with its shortfalls in cul- alleled advantage of this avenue, against bias, whether real or tivating a Bumiputera managerial over regulation and persuasion, perceived, will be reinforced in and professional community. I is that governments directly tug the event that Chinese busi- don’t see how this can be shocked the public purse strings and can nesses turn out to be main ben- into development. We need to authoritatively set the terms of eficiaries of future tenders. chart a transition path that in- access to the funds.

Aliran Monthly : Vol.29(5) Page 30 This approach could also re-orient 3. Ethnic and gender composition On the whole, the government us towards providing incentives for of management. We should re- procurement system envisaged businesses to do a range of good ward companies to the extent here will need to strive for a bal- things for society, away from the their management teams are ance of a broader set of objectives entrenched habits of laying down representative of our social alongside the imperative of effi- quotas and getting pre-occupied tapestry. ciency. It will be structured to pro- with ethnicity and ownership. vide incentives, perhaps by adopt- 4. Ethnic and gender composition ing a points system according to We can draw on the experience of of professional positions, and the above criteria, for companies other countries trying to achieve of workforce on the whole. Pri- to do better across a spectrum of similar objectives. In South Africa, ority should be ascribed to desirable outcomes besides price. companies compete for govern- companies that demonstrate The lowest bidder may indeed get ment contracts on price and qual- more commitment to diversity there by compromising labour ity, but can score bonus points for in their ranks. and environmental standards. demonstrating composition of ownership, management and em- 5. Development of new enter- Applications and approvals must ployment that are representative prises or subsidiaries, through not get choked in red tape; firms of society, as well as for upgrad- the sourcing of inputs or sub- should not be overly burdened. We ing skills and committing to other contracting of jobs. Higher pri- will probably need to inject some socio-economic objectives. ority can be given to compa- degree of flexibility, for instance, nies that have supported the exempting small- and medium- Of course, these thoughts are pre- establishment of new up- scale enterprises from meeting all liminary – we need to think this stream or downstream affili- the criteria and permitting them through carefully. Unlike the BN- ates. to select a few to pursue. style of top-down quick-fixes with fanfare, let’s have a thorough dis- 6. Employment of disabled per- But those are details that can be cussion to formulate a binding set sons. We can assign bonus ironed out. of rules, with a judicious blend of points to companies that pro- statutes and discretionary space. vide meaningful jobs to mem- Towards real reforms bers of this long-neglected seg- The process of awarding government of society. The question is, are we going to ment procurement could evaluate merely repair or truly reform the bids on the following criteria: 7. Environmental conservation. way government spends money Similarly, this can operate as a and engages with business? 1 . Price and quality of bid and bonus: extra points for operat- Pakatan Rakyat is better posi- company track record. This cri- ing in ways that conserve en- tioned to offer substantive change, terion must of course take pre- ergy or preserve our ecology. and has taken piecemeal steps to cedence, and be accorded the chart a new course. highest weightage. But there 8. Social investment. This is a are at least seven other areas broad category, and deliber- Now it’s time to give the rakyat worth considering. ately so, to encompass a concrete, full-bodied pre- myriad forms of investment view of what ketuanan rakyat 2. Employment creation and that yield profits to society, economic and social policies training, and remuneration like health and sports facili- will look like. q paid to workers. To induce cre- ties. ation of decent, well-paying jobs and skills upgrading, we Evaluation must be based on past HA Lee is a doctoral stu- should reward companies that and proven performance, not dent in economics at the show a good track record and promises and plans. We can set University of Massachu- commit to advance growth in benchmarks and targets while setts, Amherst. these areas. avoiding rigid quotas.

Aliran Monthly : Vol.29(5) Page 31 INTERNATIONAL Election verdict 2009: Whither BJP?

One hopes that with the decline of the BJP, those struggling for democratic space and the rights of the downtrodden will come to the fore by Ram Puniyani L.K. Advani of BJP he resounding defeat of and integral humanism TT BJP in the 2009 elections, and finds BJP practices TTT decline in number of faulty in this direction. seats and decline in vot- One can point out that ing percentage prompted various since Kulkarni is an in- BJP insiders and sympathizers to sider, associated with do some introspection. Where did BJP from the times of the party go wrong? In his piece Advani’s Rath nay, in Times of India (4 June 2009), blood yatra, and is close Swapan Dasgupta feels that BJP to the top echelons of BJP and that tics to the one being articulated by has got too much identified with he had all the time to point out to the national movement led by Hindutva, which is no more ap- BJP leadership as to how their Gandhi. A similar concept of na- pealing to large section of Hindus; practice is deviating from the tionalism, based on the values of so it needs to come out of this im- genuine Hindutva. One is not sure liberty, equality and fraternity age for a makeover. Sudheendra whether this has been done inside were also articulated by Kulkarni (Tehelka, 13 June 2009), the party forums; anyway, let’s Ambedkar, while the third major looks at the defeat as close Advani keep that aside. stream during the freedom move- aide and also as an insider and ment, Bhagat Singh and the Com- points out that Advani was not Concepts and ideologies are not munists, dreamt of a socialist so- sufficiently backed up by RSS and made in the thin air. They reflect ciety, based on the notions of sub- BJP. He also says that BJP’s imple- the needs of social groups. These stantive equality and state regu- mentation of Hindutva looked to terms couched in the language of lating the social relations to en- be anti-minorities and that its religion were devised by ideo- sure this equality. links with RSS need to be given a logues of declining sections of second look. Hindu society, the landlords and It must be pointed out that the con- Brahmins from the early 1920s cept of Hindutva aims at Hindu Kulkarni projects as if Hindutva onwards. The term Hindutva in nation, in parallel to the concept is all inclusive, Hindu identity is particular came into being as the of Muslim nation being pro- core of Indian nationalism, and politics of Hindu Mahasabha and pounded by the Muslim League, cultural nationalism is not meant RSS. It stood for the politics of Hin- and in opposition to the concept for Hindus alone. One can infer dus, for the building of Hindu of democratic secular nation, the that Kulkarni basically stands by Rashtra. This word was coined by concept for which the national the core RSS concepts of Savarkar in 1920s and was meant movement was working. This In- Hindutva, cultural nationalism to be an alternate notion of poli- dian nationalism is all inclusive,

Aliran Monthly : Vol.29(5) Page 32 inclusive of all religions, castes ment? It is this national movement that’s why it justifies the Gujarat and both genders. The concepts which laid the basis of India and violence and Kandhamal, rejects of Hindu and Muslim nations are achieved India’s independence. Sachar committee etc. It is not a exclusive concepts. The second These streams which take the mere coincidence; it is the core of point is that the Gandhi- cover of glorious traditions focus the BJP’s politics. It is not that the Ambedkar nationalism was based only on those traditions that are concept of Hindutva is on the equality of caste and gen- elitist. In the Indian context, the inclusionary and the practice der while HIndutva and the ide- concepts Hindu nationalism and faulty, the very concept of ology of Muslim nationalism were Muslim nationalism derive their Hindutva is exclusionary, in a continuum of the feudal values, legitimacy from the Brahminical theory and practice. the harping on caste and gender and Ashrafs (Muslim elite) hierarchy. In the same direction streams respectively. Why can’t Can BJP throw away Hindutva later, Deen Dayal Upadhyay, the RSS-BJP say that they are prima- and their aim of building a Hindu ideologue of RSS-BJP, very clev- rily loyal to the values of Liberty, nation around the glorious Hindu erly put up the concept of integral Equality and Fraternity and traditions of Manu Smriti? The humanism. This concept argues dump all those concepts built question is misplaced as the BJP that as any organism is well bal- around religious identity? It is is nobody to decide that. The BJP anced due to the division of work because these religion-based con- is merely a political arm of the between different parts of the cepts are the best cover for the op- RSS; it is the RSS which has to body, similarly different social pression of women, dalits and decide that. Can the RSS cut its groups perform different well de- non-Hindus. And in turn these own legitimacy off by renouncing fined tasks to provide the equilib- concepts also demonise, intimi- Hindutva? The question does not rium for the proper social func- date and commit violence against arise. The RSS essentially is aimed tioning. This in a way talks of sta- minorities, trying to reduce them around these goals. Kulkarni’s tus quo in the caste and gender to second-class citizens. confusions and his welcome con- relations prevalent in society. cern about poor, minorities and The BJP could come to power only dalits are misplaced as those are BJP’s exclusionary because of their harping on the not the concerns of the RSS; they worldview identity of Lord Ram. The BJP have never been and can never be does hold Ram as the symbol of the concerns of the BJP and com- Similarly, cultural nationalism as India’s identity. This is one of the pany. Hindutva or integral hu- propounded by RSS and adopted expressions of their cultural na- manism is a cleverly worded dis- by BJP stands for the elite tionalism. The question arises guise to undermine the concept of Brahminical culture as the syn- why only Lord Ram is the symbol democracy. The last two decades onym for Indian-ness. All in all, of India; why not Shambuk or Bali had been a nightmare where the this is precisely what RSS defines or Sita? In a nutshell, their cul- values opposed to Indian nation- and BJP has practised so far. tural nationalism picks up those hood asserted themselves aggres- There cannot be equal place for characters which suit the interests sively, bringing immense miser- dalits, women and non-Hindus in and agenda of the Hindu elite. ies. One hopes with the trend of this scheme of things. Swapan Surely, had the Ram temple agita- decline of BJP, those striving for Dasgupta feels BJP has to drop tion not occurred, had the Babri democratic struggles, struggles for Hindutva to provide an alterna- mosque not been demolished and equality and the rights of dalits, tive based on good governance the Mumbai and Gujarat violence women, adivasis, workers and and non-dynasty politics. not been instigated, the BJP would minorities will come to occupy the Kulkarni’s reading of Hindutva have been on the margins of In- main social space and protect the and integral humanism is from dian society. Its raison detre is that nation from the damage done by the world of make-believe, totally it is the progeny of the RSS and the politics in the garb of religious off the mark. The simple question that it is related to the VHP and identity. q is why were these practitioners of Bajrang Dal, whose vagaries it Hindutva and cultural national- keeps defending most of the time. Source: Issues in Secular Politics, June ism aloof from the national move- It is thoroughly exclusionist and 2009 III

Aliran Monthly : Vol.29(5) Page 33 been subverted with impunity. That is the fifth point.

We can safely assume that the two renegades who have been charged in court will not be found guilty either because the case may be dropped or there may not be sufficient incriminating evidence. That is the sixth point.

It has been established that Article 72(1) of the Federal Constitution can be discarded and it will apparently become irrelevant in future cases involving the Opposi- A record of Aliran'sAliran'sAliran's stand on current affairs. tion. That is the seventh point.

In future no motion of confidence will be allowed or recognised in the Perak State Assembly because it is not specifically provided for in the Perak State Constitution. That is the eighth point.

Speaker Sivakumar, if he claims to be the legitimate authority of the House, will be rudely dragged away from his seat by the ser- geant-at arms amply assisted by the ever-willing police. That is the ninth point.

Any Pakatan assembly member who dares to challenge the BN- The time of reckoning A peoples’ government duly installed Speaker’s legitimacy will come elected and determined by 53 per will be suspended without any cent of Perakians has been over- emolument. That is the tenth The Court of Appeal’s ruling as turned. That is the third point. point. to who the legitimate Menteri Besar is has not in any way re- The betrayal of three renegades This will be the scenario of Perak solved the political crisis that the who jumped ship for selfish rea- politics. This will be the corrupted state of Perak has been embroiled sons has been legitimised as con- version of our democratic process in. That is the first point. tributing to the so-called majority that will continue to shame us and of the Barisan Nasional that al- haunt us until the people have the The sanctity of the the prin- lowed the BN to ignore and dis- opportunity to right this grave ciple of the separation of pow- miss the electoral process. That is wrong when the assembly is fi- ers has been unceremoniously the fourth point. nally dissolved. violated and sacrificed for political expediency. That is the Through manoeuvring and ma- The court-appointed Menteri second point. nipulation, the peoples’ will has Besar Datuk Dr Zambry Abdul

Aliran Monthly : Vol.29(5) Page 34 Kadir has stated, “I believe that so intolerant that they have in- whether the BN is putting pres- people will be able to see the truth truded with impunity into the sure on the police, making it diffi- now.” harmless individual actions of cult for them to be neutral and to Malaysians. According to the concentrate on their primary task No, Datuk, they have not seen the Taiping MP Nga Kor Ming, “put of maintaining law and order. It truth but they saw the farce that up tent cannot, gather cannot, would be more than a pity if Ma- frustrated the democratic will of wear black cannot, hold candles laysians become disillusioned the people. cannot, drink teh tarik also can- with the police. not.” The court of law may have ap- The Prime Minister must ensure pointed you as the MB but the Indeed, the police action has only that as long as the peace is not peoples’ court will definitely re- accentuated the political problem breached and law and order is verse this absurd decision and will and added tremendously to the respected, the democratic space, ultimately re-appoint the legiti- Barisan Nasional’s headache. It which is a fundamental right, mate MB, Datuk Seri Mohammad is unfortunate that the police are must be guaranteed to Malay- Nizar Jamaluddin as the chief ex- viewed negatively and no longer sians. The PM should allow harm- ecutive of Perak state. come across as a ‘people-friendly’ less activities, like fasting, to take force. place. The BN leadership must As for the rest of the nation, they take note that the political turmoil will remember Perak and they will It is of utmost importance that civil resulting from the illegal takeover remember this injustice when the society must have some space to of the legitimate government of the time of reckoning comes. articulate and demonstrate their people is unlikely to abate. If any- grievances to make known to the thing, it will continue to escalate P Ramakrishnan authorities what their complaints to the detriment of our young na- President are. In all civilised and civil soci- tion. 23 May 2009 eties, this democratic space is ac- cessible and even recognised as a The only way to overcome the matter of right. Perak crisis is to dissolve the Perak So when has fasting State Assembly and to hold fresh become an offence? This is why we are disturbed that elections so that the people of the police deployed so much man- Perak can choose their govern- Aliran is terribly perturbed by the power and equipment to disrupt ment they want to administer their increasing role the police is as- the fast that was scheduled to be state. Anything short of a state- suming which is perceived to be launched today. According to The wide re-election is travesty of de- undemocratic and very unfair. Malaysian Insider, “a total of 40 mocracy. They have intervened whenever policemen, two jeeps, four police peaceful activities such as candle- cars, two vans and seven trucks P Ramakrishnan light vigils are organised by civil were seen in the area”. Most President society groups. people will view this as a waste 26 May 2009 of police resources when the rate These activities have not threat- of serious crimes is escalating and Invoke judges’ ened the security of the nation. requires urgent attention. The po- code of ethics: Neither have they caused any traf- lice should be tackling this seri- Investigate fic congestion. And yet, partici- ous problem instead of harassing these judges pants have been dispersed and ordinary Malaysians. arrested in a regrettable manner, Justice is becoming a rare com- causing pain and anguish for It is also unfortunate that people modity in our courts when judges concerned citizens who mean are beginning to view the police of questionable ability sit in judg- well for this nation. as taking sides in the clash of ment. This situation raises serious wills between the BN and the concerns regarding the appoint- Recently, the police have become Pakatan. People are wondering ment of judges and their elevation

Aliran Monthly : Vol.29(5) Page 35 to the bench. It is crystal clear that the courts have no business In the recent cases involving the in getting involved in this Perak crisis, we wonder whether matter. the Federal Court judges and the Court of Appeal judges who heard And yet, the supreme law these cases were right in ignoring of the country, which Article 72(1) of the Federal Con- should be the corner- stitution. We are appalled with stone of our judicial sys- their judgment which went tem and justice, have been against the grain of justice. totally side-stepped and circumvented to the utter On what basis did the Federal disgrace of the judiciary. Court judges rule that the Speaker of the Perak State Assembly had In the case of the single no power to suspend certain BN junior Appeal Court Assembly members? In any case, judge, there was no basis it was the Rights and Privileges for him to grant a stay in spite of to explain it to us ordinary folk. Committee that had suspended the declaratory order of the High We know what the words mean. them – not Sivakumar. That fact Court which was the outcome of By not administering and apply- fell on deaf years. a ‘well considered judgment’ as ing the law, which in this case is stated by N H Chan. The stay was the supreme law of the land as it But the moot point is can these deemed as absurd according to stands, the errant judges have judges ignore and discard the pro- authoritative legal circles and the brought discredit to the judiciary visions of the Federal Constitution grounds for the stay have not been – grounds for their removal from in deciding their cases? Aren’t stated or supported by any sen- office.” decisions based on sound reason- sible logic. ing rooted in precedents and writ- Aliran supports the view that ten law? In all these cases there have been these judges should at least be in- no written judgment. This is a ri- vestigated as to whether this Code In a well-argued article, the former diculous situation that is not fair has been violated. Court of Appeal judge N H Chan to the aggrieved parties, to mem- has clearly established that the bers of the public and to academia. Their continued presence on the Judges’ Code of Ethics had been Judges simply cannot pronounce Bench is alarming. What is at breached by these judges who had judgments that are not backed by stake is justice itself when these not paid any attention to the Fed- sound arguments, reasoned logic, judges sit in judgment. It would eral Constitution. precedents and written law. Liti- be a travesty of justice if they are gants have a right to know how a allowed to occupy the hallowed N H Chan has pointed out that particular judge arrived at a deci- positions on the Bench if they Article 72(1) specifically states, “ sion so that the aggrieved party have broken the Code or have not The validity of any proceedings has that fundamental right to discharged their duties properly. in the Legislative Assembly of any challenge that decision. That is State shall not be questioned in the only way to seek justice. When justice is not rendered any court.” How come this provi- based on precedents and the Con- sion did not mean anything to N H Chan has suggested the use stitution, it becomes a costly and them? of the Judges’ Code of Ethics 1994. futile attempt turning to the courts for justice. The words of this provision are According to him, “The words of written in unambiguous terms section 3(1)(d) (of the Code) are so P Ramakrishnan that it is not too difficult to under- clear and easy to understand that President stand what they mean and imply. we do not need any court of law 28 May 2009

Aliran Monthly : Vol.29(5) Page 36 CAN YOU SELL SOMETHING ... Continued from page 40

dants. Therefore it is unnecessary to dwell on this.

What I’m interested in is how this land was acquired by the Penang Government Officers Cooperative – Koperasi Pegawai Kerajaan Pulau Pinang. How was the cooperative able to obtain this parcel of land below market value? Did the officers who were influential and closely linked to the Barisan Nasional Government and Umno just help themselves to it with the blessings of the Penang state government? After all it was Umno that was effectively run- ning the government and who would have dared to question it or oppose whatever that was much history but that meant noth- would not continue. They got rid done by the Umno Exco Members? ing to human avarice. Thank God of that famous name: BBGS. They it did not take off but the point is did not even bother to retain the Did the land actually belong to the we were even prepared to commit old name of the school to honour Penang state for these officers to this sacrilege! its history and contribution to our grab it on behalf of their coopera- education. tive? Then there was an attempt to shift the well-known St Michael’s In- I’m sure there are numerous other According to legal circles, this stitution in Ipoh somewhere else examples of indifference and sac- land was under a trusteeship. But just because it was in the middle rilege. this trusteeship was dissolved by of a fast growing township. But St an Act of Parliament in 1976. Michael’s was there long before But the latest example to wipe out When this took place, we are told, so-called development caught up history and a legacy that goes back this parcel of land reverted to the with it. Thank God it did not take nearly 200 years and make way federal government. The owner- place! for greed and corruption is taking ship of this land, it is believed, is place in the Pearl of Orient: still with the federal government. But Bukit Bintang Girls’ School in Penang’s version of High Chap- Kuala Lumpur was not that for- arral is facing extinction within a It is a mystery why the BN gov- tunate. This famous school, which matter of weeks. ernment deprived these poor was a landmark in the history of Kampung Buah Pala residents of our education, had produced so How did the their land by passing this Act of many brilliant students and lead- Penang govt Parliament. The BN with its ma- ers but that notable achievement acquire the land? jority simply took over this land – did not spare it. It eventually lost nay, it just robbed them of their to development and greed. It was Much has been written about the land. demolished to make way for com- history of this community that has mercial purposes. Though the been occupying this parcel of land There is no evidence that the school was shifted elsewhere, which has been home to more Penang state government had they made sure that its history than five generations of descen- ever paid a premium to buy back

Aliran Monthly : Vol.29(5) Page 37 “There is no evidence before this Kampung Buah Pala case. court that the land in question had reverted back to the state under In both cases the Federal Court the operation of the old Article 84. was a total disappointment. In the The ownership of the land when Buah Pala case, it ruled that the it was purportedly alienated to the plaintiff had no locus standi. How 2nd defendant - Koperasi could this be so when the resi- Pegawai Kerajaan Negeri Pulau dents of Buah Pala can trace their Pinang - is an important issue to ancestry to more than five genera- be considered and for that reason tions! I am not prepared to grant sum- Sugumaran, residents committee mary judgment as sought by the It is this vital and critical point chairperson 2nd and 3rd defendants.” that has to be addressed. Whose land is it? Does it belong to this land. There is no evidence The Court of Appeal totally ig- Penang? If so, what is the evi- when this land reverted back to nored the valid points raised by dence and where is it? the state of Penang. In all prob- the High Court and, without any ability, the land is still vested in legally established basis, ruled in If “the available evidence seemed the Federal Lands Commissioner. favour of the defendants in setting to show that the land is still vested aside the High Court ruling. in the Federal Lands Commis- A repeat of sioner, regardless of whether the the Nizar case This decision seemed to be a re- Commissioner is aware of that peat of Nizar’s case in which the fact” as contended by the Deputy That being the case, how was this High Court in a sound judgment Registrar, how could this trans- land transferred to the coopera- had ruled that Nizar was the le- action have taken place? tive? There appears to be a fraudu- gitimate Menteri Besar of Perak at lent transfer of land which is a all material times. But the one- Can you sell something that you very serious matter. Why did the man Appeal Court set aside this don’t own? Or transfer something Court of Appeal and the Federal finding without any written judg- that you don’t have? That is the Court totally ignore this vital point ment. This scandalous situation only question that deserves an when the residents turned to these was re-enacted in the case of the honest answer. q courts for justice?

It is significant to note that the High Court Judge had ruled that the villagers and the residents of Kampong Buah Pala have a claim to this land.

In a well-argued judgment, Justice O’ Hara had clearly established that there are points to be tried before the courts and there are issues for the courts to weigh and consider before arriving at the truth as to the ownership of the land.

In upholding the decision of the Deputy Registrar (DR), Justice O’ Hara referred to the DR’s ruling,

Aliran Monthly : Vol.29(5) Page 38 NEW BOOK

Old vs New Politics in Malaysia State and Society in Transition

he central argument in TT this volume of 27 essays TTT on Malaysian politics and society, is that there exists a conflict between the BN’s Old Politics which is essentially ethnic-based and characterized by money politics, coercive laws and other restrictions, and New Politics which demands more democratic participation and social justice, accountability and transparency, and is more multi- ethnic in orientation. The NGOs, new media, Reformasi and the results of the 2008 general elections mark the arrival of this New Poli- tics. Between the Old and the New lies a Politics of Developmentalism which also helps to explain why many people continue to support the BN. But developmentalism also underscores the relatively non-violent transition to a two- coalition political system in Ma- laysia.

Francis Loh Kok Wah is a professor of politics in Universiti Sains Malaysia (Penang) and secretary of Aliran. He has published several books on Malay- Available from : sian politics and writes ALIRANALIRANALIRAN regularly for Aliran 103, MEDAN PENAGA, Monthly where most of the 11600 JELUTONG, PENANG, MALAYSIA. essays were first published. Price including postage: RM38. Payment to be made to Persatuan Aliran Kesedaran Negara

Aliran Monthly : Vol.29(5) Page 39 HERITAGE

The Kg Buah Pala controversy Can you sell something that you don’t own?wn?wn? How could the Penang state govt under the BN sell the land when “the available evidence seemed to show that the land is still vested in the Federal Lands Commissioner”? by P Ramakrishnan

egative elements - greed, NN corruption, abuse of NNN power and judicial indifference - have con- spired to wipe out part of Penang’s history and destroy its heritage.

History and heritage are assets of a nation and they should be pre- served for posterity. All civilised nations take pride in their history and heritage and accord them the rightful place in honouring these assets.

But we in Malaysia do not attach as much affection and concern for our history and heritage. There was a time when we even considered getting rid of the Merdeka Stadium to make way for commer- cial projects.

Merdeka Stadium is best remem- bered as the place where our be- loved first Prime Minister, Tunku Abdul Rahman, declared this nation’s independence. It represents so many memories and so

Continued on page 37

Aliran Monthly : Vol.29(5) Page 40