For Justice, Freedom & Solidarity · the talk would only be about re-suscitating Malay dominance...

Aliran Monthly : Vol.29(5)

PP3739/12/2009(022904) ISSN 0127 - 5127 RM4.00 2009:Vol.29No.5

For Justice, Freedom & SolidarityFor Justice, Freedom & SolidarityFor Justice, Freedom & SolidarityFor Justice, Freedom & SolidarityFor Justice, Freedom & Solidarity


ow serious was the pro-posal for “unity talks”between Umno and Pas?After much pussy-foot-

ing and yes-I-want-no-I-will-think-about-it, Umno PresidentNajib was offering his party’shand to Pas, an apparently coyand indecisive bride-to-be.(Andnow there is an attempt to engagein “intellectual discourse”, initi-ated by the deputy youth leadersof both parties.)

But one thing we can be sureabout, this unity talks plan was aserious marriage proposal onUmno’s part, and the only thingthat kept the prospective bridefrom accepting the proposal out-right was that some members ofthe family were dead set againstthe idea. Marrying an old, sly, richsuitor was risky.

It was obvious that Umno hadmuch to gain from the Pas merger.And as for Pas, would it not havebeen too much of a sacrifice, espe-cially the second time around?

In their previous liaison, the rela-tionship was rudely ended whenUmno called off the deal in 1978with the invoking of an emergency

law. This time around, Umnowould be revived and Pas wouldhave willy nilly relinquished itsidentity as an Islamic party, whileits path towards an Islamic de-mocracy would have come to adead end.

Why was it so crucial for Umno tocourt Pas and tempt it into leav-ing the Pakatan Rakyat?

Hypothetically speaking, having

COVER STORY

Umno and Pas:Once bitten, twice not shyA Pas-Umno ‘marriage’ would have been nothing more thana marriage of convenience with disturbing consequences

by Maznah Mohamad

HHHHH

Courting trouble


In our cover story, Maznah Mohamad analyses the re-cent proposal for Umno-Pas unity talks. A Pas-Umno‘marriage’, she says, would have been nothing morethan a marriage of convenience with disturbing conse-quences. Such talk and the divisions it has created in Pasmay have contributed to the party’s poorer showing inthe recent Manek Urai by-election, suggests Anil Netto.

Tan Pek Leng reviews an inspiring new book of poemsand prose of men who were imprisoned without trialfor their convictions in Singapore. Such dissidents and‘prophets of doom’ are actually essential cornerstonesfor building an accountable and just democracy, saysAngeline Loh.

It all depends on how you look at them. HishamuddinYahaya points out that people like Mat Kilau and TokJanggut were dubbed “traitors” by the British while ChinPeng and company were seens as “terrorists”. No mat-ter what, not one person should be held in detentionwithout trial as it violates basic human rights, assertsNorlaila Othman.

It’s not just the ISA that needs to be repealed. It is time toset up a law reform commission to look into and updateoutdated criminal laws, writes Hamid Ibrahim. TommyThomas discusses the Griffith thesis: Judges well lendtheir support to government measures to preserve sta-bility and they will not be overly concerned if such mea-sures require the invasion of individual stability.

Government policies, such as those governing publicprocurement, need to be reformed as well. H A Lee saysits time to give the rakyat a preview of what ketuananrakyat economic and social policies will look like.

Finally, P Ramakrishnan takes a look at the controversyover Kg Buah Pala.

C O N T E N T S

EDITOR'S NOTE

COVER STORYCOVER STORYCOVER STORYCOVER STORYCOVER STORY••••• UMNO And PAS: Once Bitten,UMNO And PAS: Once Bitten,UMNO And PAS: Once Bitten,UMNO And PAS: Once Bitten,UMNO And PAS: Once Bitten,

Twice Not ShyTwice Not ShyTwice Not ShyTwice Not ShyTwice Not Shy 22222••••• A Wake-up Call For PASA Wake-up Call For PASA Wake-up Call For PASA Wake-up Call For PASA Wake-up Call For PAS 77777

FEATURESFEATURESFEATURESFEATURESFEATURES••••• Lambs Under The ThroneLambs Under The ThroneLambs Under The ThroneLambs Under The ThroneLambs Under The Throne 88888••••• Human Rights And Criminal JusticeHuman Rights And Criminal JusticeHuman Rights And Criminal JusticeHuman Rights And Criminal JusticeHuman Rights And Criminal Justice 1 11 11 11 11 1••••• Take Action Against SteepTake Action Against SteepTake Action Against SteepTake Action Against SteepTake Action Against Steep

Hill-Slope ProjectsHill-Slope ProjectsHill-Slope ProjectsHill-Slope ProjectsHill-Slope Projects 1 61 61 61 61 6••••• Vistas Of Detention...Vistas Of Detention...Vistas Of Detention...Vistas Of Detention...Vistas Of Detention...

Voices Of FreedomVoices Of FreedomVoices Of FreedomVoices Of FreedomVoices Of Freedom 1 91 91 91 91 9••••• ‘Prophets Of Doom’ Provide Hope‘Prophets Of Doom’ Provide Hope‘Prophets Of Doom’ Provide Hope‘Prophets Of Doom’ Provide Hope‘Prophets Of Doom’ Provide Hope 2 32 32 32 32 3••••• Traitors And TerroristsTraitors And TerroristsTraitors And TerroristsTraitors And TerroristsTraitors And Terrorists 2 62 62 62 62 6••••• Time To Abolish The ISA For GoodTime To Abolish The ISA For GoodTime To Abolish The ISA For GoodTime To Abolish The ISA For GoodTime To Abolish The ISA For Good 2 82 82 82 82 8••••• Public Procurement: Abuses AndPublic Procurement: Abuses AndPublic Procurement: Abuses AndPublic Procurement: Abuses AndPublic Procurement: Abuses And

ChallengesChallengesChallengesChallengesChallenges 2 92 92 92 92 9••••• Election Verdict 2009: Whither BJP?Election Verdict 2009: Whither BJP?Election Verdict 2009: Whither BJP?Election Verdict 2009: Whither BJP?Election Verdict 2009: Whither BJP? 3 23 23 23 23 2••••• Can You Sell Something ThatCan You Sell Something ThatCan You Sell Something ThatCan You Sell Something ThatCan You Sell Something That

You Don't Own?You Don't Own?You Don't Own?You Don't Own?You Don't Own? 4 04 04 04 04 0

REGULARSREGULARSREGULARSREGULARSREGULARS••••• Current ConcernsCurrent ConcernsCurrent ConcernsCurrent ConcernsCurrent Concerns 3 43 43 43 43 4

OTHERSOTHERSOTHERSOTHERSOTHERS••••• Subscription FormSubscription FormSubscription FormSubscription FormSubscription Form 1 81 81 81 81 8••••• New Book By Dr Francis LohNew Book By Dr Francis LohNew Book By Dr Francis LohNew Book By Dr Francis LohNew Book By Dr Francis Loh 3 93 93 93 93 9

Aliran is an organisation for ‘social democraticAliran is an organisation for ‘social democraticAliran is an organisation for ‘social democraticAliran is an organisation for ‘social democraticAliran is an organisation for ‘social democraticreform’. We advocate freedom, justice andreform’. We advocate freedom, justice andreform’. We advocate freedom, justice andreform’. We advocate freedom, justice andreform’. We advocate freedom, justice andsolidarity; comment critically on social issues, offersolidarity; comment critically on social issues, offersolidarity; comment critically on social issues, offersolidarity; comment critically on social issues, offersolidarity; comment critically on social issues, offeranalysis and alternative ideas keeping in mindanalysis and alternative ideas keeping in mindanalysis and alternative ideas keeping in mindanalysis and alternative ideas keeping in mindanalysis and alternative ideas keeping in mindthe national and global picture based on universalthe national and global picture based on universalthe national and global picture based on universalthe national and global picture based on universalthe national and global picture based on universalhuman rights and spiritual values. We are listedhuman rights and spiritual values. We are listedhuman rights and spiritual values. We are listedhuman rights and spiritual values. We are listedhuman rights and spiritual values. We are listedon the on the on the on the on the roster of the Economic and Social Council ofroster of the Economic and Social Council ofroster of the Economic and Social Council ofroster of the Economic and Social Council ofroster of the Economic and Social Council ofthe United Nations. Founded in 1977, Aliranthe United Nations. Founded in 1977, Aliranthe United Nations. Founded in 1977, Aliranthe United Nations. Founded in 1977, Aliranthe United Nations. Founded in 1977, Aliranwelcomes all Malaysians above 21 to be members.welcomes all Malaysians above 21 to be members.welcomes all Malaysians above 21 to be members.welcomes all Malaysians above 21 to be members.welcomes all Malaysians above 21 to be members.Contact the Hon. Secretary or visit our webpage.Contact the Hon. Secretary or visit our webpage.Contact the Hon. Secretary or visit our webpage.Contact the Hon. Secretary or visit our webpage.Contact the Hon. Secretary or visit our webpage. Printed by Konway Industries Sdn. Bhd.

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Pas join the BN coalition wouldup the parliamentary seats of theBN to 163 and reduce the PR seatsto 59. This would mean that theBN would get to control 73 percent of the seats and PR would bereduced to having only 27 per centof the seats.

Furthermore, if all the Pas seatswere to be added to the Umnoseats, the BN coalition would bedivided this way – 63 per centMalay seats, 25 per cent East Ma-laysian seats and 12 per cent non-Malay seats. This is Umno’sdream: to sell the idea to Malaysthat the BN is a multi-racial partywith a difference — that Malaysand Muslims are the strongestand only formidable majoritywithin the coalition.

Umno has proved that, as a party,it is not able to institute any inter-nal reforms. Not only is the partyriddled with corruption, it alsolacks both ulamas and intellectu-als among its membership. Pashas the ulamas and the intellec-tuals Umno sorely needs, and theonly plausible way for Umno toreinvent itself today would reallybe to absorb what it does not have.Through “buying in” what it

lacks, Umno can be repackaged,its long-lost lustre reclaimedthrough Pas’ hand in marriage.

Having 63 per cent of Malay seatsin the BN is the best idea to sell toMalays: that there would now beMalay unity. Umno hopes thatwith “Malay unity” the non-Malay partners wouldfeel even more secureabout the arrangementand will continue to beensconced within theBN rather than leavethe coalition.

As for Pas, would thisbe a dream scenario? Itwould have been a dif-ficult road ahead forthe party brokers, whowere deeply immersedin courtship rituals.

First, they had to dealwith the other factionof Pas, who werestrongly opposed tothe idea. This is astrong faction with anequally strong icon inthe person of the TokGuru Nik Aziz. This isalso the faction domi-

nated by the intellectuals,Umno’s greatest threat.

Second, Pas’ brokers had to an-swer the question as to why theywere now contemplating sleepingwith an old enemy. What hap-pened to the “kafir-mengkafir” ac-cusations? Would they “forgive


“Malay unity” even if artificiallycreated through electoral machi-nation, would have led to a moreracially-divided Malaysia. Morethan it ever has been.

Voters would have been forced tovote within a more starkly racialframework, even if it goes againsttheir sense of decency. Voting forthe BN would simply mean vot-ing essentially for Malay-Muslimsupremacy and voting for PRwould mean voting for minorityvoices. It wouldn’t be a choice be-tween development or backward-ness or between clean governmentor corrupt government. It wouldbe mostly about race.

Second, the negotiating power ofthe non-Malay partners withinthe BN - including those of theEast Malaysian partners - wouldhave been severely diminished,.With Malay control of 63 per centof the BN seats, not even the part-ners from Sabah and Sarawakcould squeak within the coalition;they would have possibly seen adrastic fall in their fortune frombeing kingmakers to beggars.

Third, Malays would have beeneven more confused about theirown quest for economic advance-ment, democracy, cultural free-dom and clean government. Therewould only be a monolithic racial

and forget” over the Memali inci-dent?

Third, they would have had toweigh the possibility that theparty would lose its Islamic iden-tity, as being in the BN wouldmean having to negotiate withUmno on everything, from the dis-tribution of ministerial posts todetermining what is the right Is-lam. Besides, in the next electionPas would not have been able touse its signature moon and greenlogo to contest. Small issue, but intoday’s world, image is every-thing.

Fourth, they would have had tofigure out how to clean up anUmno which they themselves hadderided as being corrupt, de-bauched and immoral. What per-suasive power would HadiAwang, Nasharudin, Mustafa Alior Hassan Ali have over theUmno warlords, contract-lordsand money-lords?

Fifth, they would have had to facethe strong possibility that all thenon-Malay support that they aregetting now would completelyevaporate come the next election.

Finally, how would joining the BNhelp in efforts to revive theeconomy, improve educationalstandards, create an independent

media and guarantee the libertiesof citizens? These issues hadnever been part of the unity talks;the talk would only be about re-suscitating Malay dominancerather than Malay progress.

But all of the above questions maynot have occupied the minds ofthe “unity” team. For Umno, it wasto save itself from obsolescence.For Pas, it was for some of its bro-kers to taste the power of federalministerships, besides ensuringthat it would get to control fourstates together with Umno —Selangor, Perak, Kelantan andKedah.

The Pas leaders may even havethought that with all these statesunder the joint control of theirparty and Umno, Pas could thenachieve its own dream of havingIslamic governance in four morestates.

Creating a strong, Malay-Muslimmajority has never been that easyand secure.

However, the implications of theabove scenario could lead to dis-turbing consequences.

First, the logical outcome of

D i s t u r b i n gc o n s e q u e n c e s


party to choose from; there wouldbe no intra-Malay contestation,which could provide for a healthybasis to build and strengthen de-mocracy.

Already, the sluggishness of theeconomy and the worsening ofmediocrity in education, gover-nance, health, judiciary and eventransport planning have been at-tributed to the NEP. With a mono-lithic Malay government, thepolicy of handouts would haveonly be intensified rather thanloosened.

Fourth, the development of Islamitself would have taken on a moreauthoritarian and draconian turn.With Pas and Umno in fusion, thecombination could even have beendeadly, as far as Muslims are con-cerned.

Already there is a powerful Is-lamic bureaucracy that had beenbuilt by Umno. It has been quitean intolerant bureaucracy that hasbanned many forms of Islamicgroups, particularly the varioustarekats and all kinds of Islamicperspectives from existing.

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 (es-pecially its ulama faction) wouldprobably give in to the enforce-ment of Islamic criminal laws or,to be more precise, the hudud.

At the moment, Islamic scholarsand jurists are not too happy thatthe Syariah courts are not givenenough power to mete out properpunishments by Islamic stan-dards.

For example, while zina (sexualrelations outside marriage) is leg-islated as a crime under the vari-ous Islamic criminal offences, theSyariah lobby laments that thepunishment under Syariah proce-dures is limited to only six monthsimprisonment, a RM1,000 fineand six strokes of the rotan;whereas, under Islam, they insistthat zina should be met with ston-ing to death.

Already, Pas has shown its intol-erant face by demanding that Sis-ters in Islam drop “Islam” fromits name. Perhaps, if the unitytalks had gone ahead, Umnowould have also gone along withthis idea as the party is desperateto survive, and those in despera-tion will give in to demands. Pasknew that Umno was that desper-ate to seek its support.

Finally, by now it is easy to seethat the union would have beennothing more than a marriage ofconvenience. The Pas-Umno bar-gain would have been Faustian innature (the devil lurks behind),

and everyone would have endedup paying a heavy price for this.

Umno would have shed its iden-tity as a moderate, Malay party;Pas would have thwarted its ownroad towards democracy; Malayswould have been held to ransomby the fiction of a unity while re-maining backward and in pov-erty, as we are not sure thatUmno’s patronage politics wouldhave come to an end with thismarriage.

The rest of Malaysia would havelooked back at the gains of 8March 2008 as nothing more thana small blip in Malaysia’s longand continuing history of rule-by-racism.

See accompanying piece for a briefdiscussion of the impact of the ‘unitytalks’ proposal on the Manek Urai by-election.

Dr Maznah Mohamad,Dr Maznah Mohamad,Dr Maznah Mohamad,Dr Maznah Mohamad,Dr Maznah Mohamad,a member of Aliran,a member of Aliran,a member of Aliran,a member of Aliran,a member of Aliran,writes regularly onwrites regularly onwrites regularly onwrites regularly onwrites regularly onMalaysian affairs.Malaysian affairs.Malaysian affairs.Malaysian affairs.Malaysian affairs.

qA Faustian pact


he Manek Urai by-elec-tion result on 14 July re-veals that the BN hasmade some inroads, es-

pecially in some rural Malay ar-eas, building on its Malay heart-land gains in Bukit Gantang, sincethe 2008 general election.

In the 2008 general election, Pasdefeated the BN by a 1,352 major-ity in Manek Urai. This time, Pasretained the seat by a whisker: a65-vote majority.

Prime Minister Najib was quickto claim a moral victory. He said“a change had begun” and itmarked the return of the people’sconfidence in the BN:”There hasbeen a large swing factor in ManekUrai. This is particularly gratify-ing because we are dealing with apart of the Malay heartland.”

Umno leaders desperately wantedManek Urai to reverse the by-elec-tion trend of Pakatan retainingtheir seats on the peninsula bylarger majorities (compared withthe general election result). If theycouldn’t secure a win, a close fightwould do nicely, thank you verymuch - and they got that.

Najib’s public relations initiatives,changes in the language educa-tion policy, and the usually waveof support for an incoming PM

may have helped in reduc-ing Pas’ winning majority.(But whatever positive ef-fects arising from these fac-tors would have beenneutralised somewhat bythe outrage following thetragic death of political sec-retary Teoh Beng Hock atthe Malaysian Anti-Cor-ruption Commission in question-able circumstances.)

Others pointed out that allegedvote-buying and promises of de-velopment including a much-talked about bridge could haveswayed some votes.

But an online poll on my blogshowed that many Malaysiansfelt that the proposed unity talksbetween Pas and Umno was thelargest factor accounting for Pas’poorer performance.

While Pakatan supporters mightnot have taken too kindly to suchtalks, some fence-sitters in ManekUrai may genuinely have felt thatgreater unity among Muslimsmight not be a bad thing. Such aproposal may even have blurredthe ideological distinction be-tween the two parties among themore easily swayed voters. Thus,they could have divided their sup-port between Pas and Umno thistime around. Some loyal Pakatan

supporters too may have showntheir displeasure over Pas’ rap-prochement with Umno.

Then there was the factionalismwithin Pas over whether the partyshould stick with the PakatanRakyat or engage in unity talks (or“intellectual discourse” or what-ever you may call it) with Umno.The lack of party unity could haveweakened the Pas campaign andcost it votes.

In the end, a party that is unsureabout who its real allies are andwhat it stands for - a more pro-gressive, inclusive approach or amore conservative, communalstance - will have a hard time con-vincing voters why they shouldvote for it. And that, to some ex-tent, explains the reduced major-ity for Pas at Manek Urai.

It’s a wake-up call for Pas to re-turn to the new, more enlightenedpath towards progressive newpolitics.

COVER STORY

A wake-up call for Pas“Unity talks” proposal may have led to Pas’reduced majority in Manek Urai

by Anil Netto

TTTTT

q


n Malaysia’s politicalsystem, the Federal Con-stitution is supreme.Fundamental liberties

are enshrined in Part II of the Con-stitution. Under the doctrine ofseparation of powers, the Execu-tive governs the nation, the Legis-lature enacts the laws, and the Ju-diciary acts as the arbiter of dis-putes between citizen and citizen,and State and citizen. The Judi-ciary, as the third branch of gov-ernment, is also entrusted withthe heavy responsibility of inter-preting the Constitution, includ-ing deciding whether laws pre-sented by the Executive andpassed by Parliament are consti-tutional. Hence, the celebratedremark by Chief Justice CharlesHughes of the US Supreme Court:“We are under a Constitution, butthe Constitution is what thejudges say it is.”

One of the major casualties of thenever-ending Perak crisis is theinstitution of the judiciary. Whenunprecedented and inexplicabledecisions are made by our courtssuch as denying a litigant the rightto choose his own lawyer, theleap-frogging of proceedingsstraight to the Federal Court with-out a hearing before the HighCourt and the Court of Appeal,and the disregard of clear provi-sions in the Constitution, as judi-cially interpreted in previous Ma-

laysian cases, one can well under-stand the decline of confidence ofthe average Malaysian in the ju-diciary as an independent, neu-tral arbiter between State and in-dividual.

But do Malaysian judges act dif-ferently from their brethren inother jurisdictions? After all, eventhe Indian Supreme Court, whichprobably enjoys the distinction ofbeing the greatest protector of civil

JUDICIARY

Lambs under the throneThe myth of judges as protectors of liberty

by Tommy Thomas

IIIII


liberties among courts across theglobe, only grew in reputation af-ter the defeat of Indira Gandhi’sregime in 1978. In the first twodecades after its establishment, itsperformance was lack-lustre andduring the Emergency the judgeswere sycophantic to IndiraGandhi. Another example is theUS Supreme Court, which in theBush v. Gore case in 2000 and inthe subsequent 9/11 andGuantanamo cases decided bla-tantly in favour of the Bush ad-ministration, at the cost of its pres-tige.

Professor John Griffith, formerlyof the London School of Econom-ics, first published the “Politics ofthe Judiciary” in 1977 which en-tered its fifth edition in 1997. Itbecame an instant classic on howthe senior judiciary in Great Brit-ain, constrained by their own self-imposed limitations, frequentlyfail in their duty as protector ofliberties. Griffith argues that thetraditional view of judges decid-ing disputes between individuals

and State impartially and withneutrality is a myth. “Neitherimpartiality nor independencenecessarily involves neutrality.Judges are part of the machineryof authority within the State andas such cannot avoid the makingof political decisions.”

Griffith refers to a survey con-ducted in the United Kingdom in1994 which revealed that the av-erage age of a Law Lord was 66years, a Court of Appeal judge 63years and a High Court judge 57years. There was no woman LawLord, only one in the Court ofAppeal and six in the High Court.Their educational backgroundwas 80 per cent public school and87 per cent Oxbridge. Judges arethus the product of a class, andshare the characteristics and feltnecessities of that class. This is notthe stuff of which reformers aremade, still less radicals or non-conformists. According toGriffith, the judges of those threeCourts which make up the higherjudiciary, have by their educationand training and the pursuit oftheir profession as barristers, ac-quired a strikingly homogeneous

collection of attitudes, beliefs andprinciples, which to them repre-sent the public interest. “They donot always express it as such. Butit is the lodestar by which theynavigate.”

The Griffith thesis is that thejudges see themselves as occupy-ing a key position in the struggleto enforce the law, and are alwaysconscious of the dangers whichthey believe will follow if they donot support the powers of the po-lice. He cites a study in 1994which analysed 13 appeals fromNorthern Ireland and showedthat the House of Lords found forthe government in all but twocases. The brevity of the judg-ments, the small amount of au-thority cited and the swift dis-

The Britishe x p e r i e n c e

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


missal of arguments based onhuman rights were common fea-tures in the 13 appeals. The studyconcluded: “By consistently up-holding governmental action inNorthern Ireland, the House ofLords has ruled itself out of play-ing a role in the conflict”.

In Griffith’s view, judges valuestability above all as necessary forthe welfare of the people and thewell-being of society. Governmentrepresents stability and have avery considerable interest in pre-serving it. Wherever governmentsor their agencies are acting to pre-serve that stability – call it theQueen’s peace, or law and order,or the rule of law, or whatever –the judges will lend their supportand will not be over-concerned ifto do so requires the invasion ofindividual liberty. Griffith arguesthat on every major social issuewhich has come before the Britishcourts in the final decades of the20th Century, the judges have sup-ported the conventional, estab-lished and settled interests. Andthey have reacted strongly againstchallenges to those interests. Theresult is a “conservative” politi-cal philosophy.

Judges are concerned to preserveand protect the existing order. “Inthe societies of our world today,judges do not stand out as protec-tors of liberty, of the rights of man,of the unprivileged, nor have theyinsisted that holders of great eco-nomic power, private or public,should use it with moderation”.Regardless of whether a society isdemocratic or otherwise, the judi-ciary has naturally served the pre-vailing political and economicalforces. Whether it is matter of lack-ing personal courage or other-wise, judges are certainly not li-

Tommy Thomas is anTommy Thomas is anTommy Thomas is anTommy Thomas is anTommy Thomas is anadvocate and solicitor.advocate and solicitor.advocate and solicitor.advocate and solicitor.advocate and solicitor.

ons under the throne, as FrancisBacon aspired centuries ago.Griffith’s final words are an eye-opener:

“That this is so is not a matter forrecrimination. It is idle to criticiseinstitutions for performing thetask they were created to performand have performed for centuries.The principal function of the ju-diciary is to support the institu-tions of government. To expect ajudge to advocate radical changeis absurd. The confusion ariseswhen it is pretended that judgesare somehow neutral in the con-flicts between those who chal-lenge existing institutions andthose who control those institu-tions.”

Without even taking into accountthe performance of the judges inthe Perak crisis, it is easy to applythe Griffith thesis to the Malay-sian judiciary. The 50-year trackrecord of the courts since Merdekaas the constitutional bulwark be-tween Executive and citizen hasbeen dismal. The pragmatic con-servatism of the judges, resultingin a very strict “hands-off” policy,has been perceived as their abdi-cating their constitutional duty indispute resolution. Whether it istheir reluctance to protect detain-ees under the harsh provisions ofthe Internal Security Act, 1960and other preventive detentionlaws, or the Salleh Abas and fivejudges cases, the Ayer Molek case,the Anwar Ibrahim prosecutionsor the latest Perak constitutionalcrisis, both informed opinion ofthe Bar/international legal bod-ies and public opinion have beencritical of our judges. But we must

The MalaysianJ u d i c i a r y

take comfort from Griffith’s study.This is a worldwide phenomenon.As pillars of the establishment, itis a universal principle that judgescannot be trusted with the liber-ties of the citizen!

Since they have life-time appoint-ments through constitutional se-curity of tenure, judges are notconcerned with public opinion asmembers of the two other branchesof government are. Members of theExecutive who are also membersof the Legislatures in democracieshave to face the electorate periodi-cally. Thus, even if Malaysia doesnot enjoy a true and functioningdemocracy, at least the electoratehas an opportunity every four tofive years to vote their politicians.In the politically awakened post-March 2008 Malaysia, whereopinion has significantlychanged, perhaps our best hopeis in the ballot box of 2012 or 2013and not in the Courts. Expecta-tions of the judges should be low-ered. The citizen’s naïve idealismshould be replaced by realpolitik.Ambition, elevation to the highertiers and promotion to the fourheads of the Courts – all of whichlie in the gift of the Prime Ministerand the Conference of Rulers –should be kept in mind whencases that go to the heart of Gov-ernment are heard by judges withhuman foibles. The tragedy is thatno other branch of governmentcan either properly discharge thejudiciary’s duty as constitutionalarbiters or resolve individualgrievances like Courts can, whichtherefore remain unfulfilled bydefault. q


he United Nations re-solved that membercountries should estab-lish their own Human

Rights Commissions. As a resultof this resolution the MalaysianHuman Rights Commission Actwas passed in 1999. But if onelooks at the Act closely one wouldfind a lot of discrepancies. Sec-tion 2 the Malaysian Act defines‘human rights’ thus:

“human rights refers to funda-mental liberties as enshrinedin Part II of the Federal Consti-tution.

On the contrary, The Indian Hu-man Rights Act 1993, s.2 defines‘human rights’ as follows:

“(d)... “human rights” meansthe rights relating to life, lib-erty, equality and dignity of theindividual guaranteed by theConstitution or embodied inthe International Covenantsand enforceable by courts inIndia”.

Articles 5 to 13 contain liberty pro-visions. Almost all these Funda-mental Liberty provisions have

been amended.

Tun Dr. Mohd Suffian, in an ar-ticle in the Current Law Journal(1983) that Part II, dealing withFundamental Liberties guaran-tees the citizen - and in many casesthe non-citizen also - certain po-litical and legal rights, in somecases subject to exceptions. Someof these political and legal rightsare:

(1) the right of the citizen to liveanywhere in the country, theright to return, the right not tobe banished;

(2) the right of a person not to bedeprived of life or personalliberty save in accordancewith law;

(3) the right to habeas corpus;(4) the right to live as a free per-

son not in slavery;(5) protection against retrospec-

tive criminal laws and re-peated trials;

(6) equality before the law andthe equal protection of thelaw;

(7) freedom of speech, assemblyand association;

(8) freedom of religion, though Is-lam is the religion of the Fed-

HUMAN RIGHTS

Human rights andcriminal justiceSet up a Law Reform Commission to look into andupdate our outdated criminal laws

by Hamid Ibrahim

TTTTT

Fundamental libertiesprovisions amended


eration;(9) the right not to be deprived of

one’s property save in accor-dance with law and the rightto compensation where one’sproperty had been compulso-rily acquired or used; and

(10) the right of the citizen not tobe discriminated against inpublic education on theground only of religion, race,descent, or place of birth.

“All these rights, and they arehuman rights, are constitutionallyprotected rights and they havebeen written into the constitutionto emphasise their importance, forbeing in the constitution they aremore difficult to abridge thanrights protected by ordinary law.

“These rights are in the main tosecure legal justice. But we on theCommission know that equallyimportant is the need to secure forman everywhere another kind ofjustice, namely political, economicand social justice - a need whichconstantly exercises our mind - sothat man can live a full life withenough to support himself andhis family in dignity and to pro-vide opportunities for his childrenand generally free from want andfear.”

Human Rights concepts, by Jus-tice C.G. Weeramantry, who wasthe Vice President of the WorldCourt in the Hague.

He wrote:He wrote:He wrote:He wrote:He wrote:

“All this way reinforced by legalpersonnel -judges and lawyers -who came from an affluent back-ground and were steeped in thelegal learning of affluent societies.Even when colonial peoples wontheir independence and manned

their own legal system, they main-tained these attitudes and thestructures, procedures and con-cepts that went with them. Theresult of all of this was that thelaw as it existed in the field wasvery different from the law as itwas depicted in the books.

The teacher of human rightsneeds therefore to stress to his stu-dents the principle set out in Ar-ticle 2 of the General AssemblyResolution, namely, that all hu-man being have a responsibilityfor development, individuallyand collectively. It is part of one’sduty to one’s community whichalone, in the language of Article2, ‘can ensure the free and com-plete fulfillment of the human be-ing’. Especially with influentialaudiences such as law enforce-ment officials, bureaucrats andteachers, it is important that thisaspect be stressed, for they areunder a special duty to act affir-matively to further this right to de-velopment. One cannot pretend tobe a promoter of human rights ifone ignores this duty to promoteactively the right to development.

In achieving this goal of develop-ment, States have a duty to under-

take at the national level all nec-essary measures for therealisation of the right to develop-ment, and are under a duty to un-sure, inter alia, equality of oppor-tunity for all in their access to ba-sic resources, education, healthservices, food, housing, employ-ment, and their fair distributionof income. It is also important thateffective measures should be un-dertaken to ensure that womenhave an active role in the devel-opment process.

Take the bureaucracy. They arethere to serve the people but theyoften seek to build little empiresof power for themselves. They areoften oppressors of the people, notso much because they deliberateset out to be so but because theyhave a sense of comradeship, soli-darity and self-importance whichcan make them overlook the needsof the people they should be serv-ing. Bureaucratic abuse of powerneeds to be watched in every ju-risdiction, and the most effectiveagencies to do this are humanrights workers. The most effectiveway to prevent this is by spread-ing an awareness of their rightsamong the populations throughhuman rights teaching.

In this regard it is strange but truethat those who ought to be the lead-ers in the dissemination of humanrights knowledge, namely the le-gal fraternity, are often rather ill-informed about human rights.This is the result of the black-let-ter legal tradition which hasdominated legal education inmany jurisdictions. There is still

S t a t e s ’ d u t y

Denigrating factors

Lawye r s ’ r o l ein human rights

Tun SuffianTun SuffianTun SuffianTun SuffianTun Suffian


a widespread feeling in the legalcommunity that black-letter law isthe only proper law worthy oflawyers’ study, and that philo-sophical and aspirationalthought in relation to such mat-ters as rights and duties may beappropriate to other studieswhich are strictly legal.

It may seem strange also that weshould have to talk about teach-ing human rights to judges. Un-fortunately it so happens thatmany members of the judiciary –particularly those who are moresenior – had their legal education,and indeed their legal practice, indays when human rights’ learn-ing was not a subject of study. Thetraditional view a generation agowas that law of property so-calledwas the lawyer’s proper sphere ofwork and that such matter as hu-man rights pertained more to thefield of morality and aspirationthan of law. Today, the disciplineof human rights is directly rel-evant to the work of every lawyerand judge, and there are statutesin most countries which translatehuman rights principles into thelaw of the land.

When I was a young lawyer Iwould have hesitated to cite theUniversal Declaration of HumanRights to a judge, for fear that Imight be told it was anaspirational and not a legal docu-ment. Today, the status of the Uni-versal Declaration of HumanRights is such that is it universallylooked upon as laying down aminimum universally recognisedset of norms by which all laws canbe tested. Moreover, judges are

engaged in the process of devel-oping the law. They do not merelydecide cases in the light of exist-ing law.

The US Supreme Court plays anotable role in this regard, and inmany other jurisdictions thejudges do likewise. For example,the Indian Supreme Court hasgiven much leadership in devel-oping new human rights-basedremedies to assist the average citi-zen. In other words, the judge to-day has an important role in ad-vancing human rights, and judgesshould be conscious of this andshould be equipped to dischargethis role adequately.

An important practical way ofseeking congruence with tradi-tional culture comes from the areaof crime and correction. In thisarea, Western-based concepts ofimprisonment are proving inad-equate in many societies to pro-vide the element of correction andreintegration into society to whichtraditional cultures attached greatimportance.

Each Nation must mould andadapt the ideas and concepts ofcommunity-based corrections tothe traditions of it own society. Themere acceptance of the imprison-ment notion of Western penal ju-risprudence, isolated as that con-cept is from the community, is of-ten of negative value. Extramuralpenal employment, techniques ofrehabilitation, reconciliation, andacceptance into the community,conciliation with the victim andthe victim’s family, suspendedsentences, community service,public participation in criminaljustice administration, reassur-

ances for the elderly, citizen crime-prevention programmes, citizenpatrols, advisory services, com-munity-police workshops, in-volvement of traditional localorganisations and village commu-nities – all these areas offer enor-mous opportunities for the incor-poration of traditional values.

It is necessary, however, to drawspecial attention to the manner inwhich, in many Third World situ-ations, the established legal orderreinforces iniquity in a manner notoften realised by the well-mean-ing participants in the justice sys-tem. This is indeed the conditionin which the majority of theworld’s population finds itselfand is one of the great humanrights issues of our time to whichscarcely any attention has beenpaid.

Justice for some is not justice forall. The formal structures of ThirdWorld legal systems often succeedin achieving the one, but fail sig-nally in achieving the other. Someof the factors resulting in this situ-ation are:

(a)Members of legal professionsand judiciaries are dawn from theupper crust of such societies andtend naturally to reflect the val-ues and interests of that class.

(b)These persons are, by and large,oriented to Western value sys-tems. Their training as lawyershas largely been in Western coun-tries or in Western-oriented lawschools. There has been an alto-gether insufficient development ofa jurisprudence suited for ThirdWorld conditions. These personstend also to be urban oriented,

Crime and correction

Third World situationsJudges ’ ro l e i nd e v e l o p i n g

human rights


of legal expertise for tax avoid-ance. In affluent countries theremay well be counter actionthrough other lawyers employedby consumer groups or other in-terest. In Third World countriessuch prostitution of legal exper-tise tends to occur without anyeffective counterbalance.

(h)Legal professions have a tradi-tionally self-centered nature. In theThird World. As elsewhere, thelaw is one of the principal high-roads to fame and fortune. Thebusy lawyer, engrossed in hiswork, chases the phantom of pro-fessional success, removing him-self progressively from the so-cially oriented issues which oughtto engage his attention as a leaderof his community. At the peak ofhis power and influence he is of-ten phenomenally removed fromthe real causes and concerns ofhis people.

Such factors, as I have said, existin varying degrees in nearly alllegal systems. For the majority ofmankind legal systems can some-times be obstacles rather than aidson the pathway to human rights.

It is well for lawyers and judges,who so often speak and write ofhuman rights, to turn the spot-light inwards upon themselves.They will from time to time findthemselves cast in the role of deni-grators rather than upholders ofhuman rights.”

(*Justice C.G. Weeramantry in Jus-tice Without Frontiers: FurtheringHuman Rights 1997 Vol.1 –Kluwer Law International- TheHague. Justice Weeramantry wasthe Vice President of the Interna-tional Court of Justice at theHague)

The United NationsC h a r t e r

whereas the vast mass of thepopulations of Third World coun-tries are of an agrarian back-ground, with needs which havetraditionally been met through adifferent value system.

(c)Court structures have a formaland expensive nature. The richlandowner has traditionally usedthese expensive structures to de-prive the poor peasant of his land.Appeals all the way up the hier-archy of courts – if need be, to thePrivy Council in colonial days orto the highest court of appeal to-day – will keep his poor adver-sary at bay.

(d)Legal rules are oriented to suitconcepts of property. This is thebasis of the legal principles, bothcivil and criminal, which consti-tute the legal systems of thesecountries.

(e) (Not applicable)

(f)Judiciaries and legal systemsare being subordinated to politi-cal power – a phenomenon whichis occurring increasingly today.The traditional insulations of ju-diciaries from political powerhave been largely eroded, if, as insome countries, they have not al-together vanished. The courts,once at least theoretical symbolsof the individual’s independence,are in many countries becomingthe very instruments by whichhuman rights denials are but-tressed and enforced.

(g)Legal professions are beingused for anti-social purpose. Thisoccurs in all countries, as for ex-ample when legal expertise isemployed to bind the poor bor-rower in a hire purchase or stan-dard form contract, or in the use

In 1948, the Universal Declarationof Human Rights Charter wasadopted as a “common standardof achievement for all peoples andall nations”. Today, the UDHRhas been supplemented by a num-ber of international instruments.Malaysia is a signatory to theUNDHR since 1957

Of all major international humanrights instruments, Malaysia hasratified only five namely

• Convention on the Eliminationof All Forms of DiscriminationAgainst Women

• Convention on the Rights of theChild

• Convention on the Nationalityof Married Women

• Convention on the Preventionand Punishment of the Crimeof Genocide

• Supplementary Convention onthe Abolishment of Slavery, theSlave Trade and Institutionsand Practices similar to Sla-very

Malaysia has yet to ratify two veryimportant Instruments namely

• International Covenant onEconomic, Social and CulturalRights (ICESCR)

• International Covenant onCivil and Political Rights(ICCPR)

Both ICESCR and ICCPR cameinto effect in 1976. Calls for ratifi-cation has been made by numer-ous quarters including the parlia-mentary opposition leader, whomoved a parliamentary motion in1976 and by the Malaysia HumanRights Commission in its year


2000 Annual Report.

As of 2002, there were 192 coun-tries in the United Nations - rati-fied ICESCR, 144 for ICCPR 142.The Malaysian governmentshould take steps to ratify theICESCR and ICCPR and ensuredomestic law compliance with theUN Conventions. In this age ofglobalisation, international lawon human rights is becoming in-creasingly relevant. Ratifyingthese two covenants will promotehuman rights and avoid the recur-ring violation of fundamental lib-erties in Malaysia.

Detention without trial is a grossviolation of human rights

Arbitrary arrests and detentionswithout trial under laws whichwere formulated to serve a realsituation of emergency many de-cades ago only disgrace Malaysiain the eyes of the world. Detentionwithout trial is a gross humanrights violation.

It violates Article 9, 10 and 11 ofthe Universal Declaration of Hu-man Rights 1948 and Article 8 ofthe covenant on Civil and Politi-cal Rights and the Federal Con-stitution which guarantees theprocess and security of persons.

In 2008 Malaysia celebrated the50th anniversary of Indepen-dence. During these 50 years, theFederal Constitution had beenmutilated through amendmentsnearly 50 times. Another irony isthat the Reid Commission Report– the Document of Destiny - wasformulated by Foreign Judges.

There was not have a single Ma-laysian member in the Reid Com-mission: all the five members ofthe Commission were foreignJudges.

Therefore it is proposed that aConstitutional Law Reform Com-mission should be establishedconsisting of Malaysians of vari-ous denominations, experts inconstitutional affairs. In 1957,Malaya did not have persons withconstitutional expertise. Todaythe story is different. There aremore than 100 experts on Consti-tutional Law. Appoint a Law Re-form Commission to review theFederal Constitution comprisinglocal legal luminaries.

It is clear from the above that thethree major criminal laws - theEvidence Act , The Criminal Pro-cedure Code and the Penal Code -were imported from India duringthe 19th century. We are now inthe 2lst Century. In this over hun-dred-year period the laws havebeen changed/reformed in theUnited Kingdom, Australia, theUnited States and the Republic ofIndia. Therefore, the time is morethan ripe for a Law Reform Com-mission to be formed to look intothese three major outdated crimi-nal laws with a view tomodernising them.

Almost all democratic countrieshave set up Law Reform Commis-sions whose function it is to lookinto in detail each and every oldstatute and to improve and reformand repeal it where necessary.

Denning’s Research Centre ofMalaysia recommends that:

• The 19th Century Statutes – theEvidence Act, 1950, the Criminal

Law ReformC o m m i s s i o nof Malaysia

Procedure Code and the PenalCode be amended and improvedin line with the 2lst century con-ditions. Many Commonwealthcountries, e.g. the United King-dom, Australia, Canada and In-dia have already amended theirlaws in line with modern-day con-ditions.

• Part II of the Federal Constitutionon Fundamental Liberties shouldbe amended to bring it back to itsoriginal state in 1957.

• Malaysia should ratify the Inter-national Covenant on Economic,Social and Cultural Rights(ICESCR)

• Malaysia should ratify the Inter-national Covenant on Civil andPolitical Rights (ICCPR)

• Malaysia should ratify The Con-vention against Torture and otherCruel, Inhuman or Degradingtreatment

• Malaysia should legislate theright to information and privacylaws without further delay.

• Repeal the Internal Security Act,1960 and the Emergency Regu-lations which are still in force -and which allow a state of emer-gency to be declared at any time.This is most dangerous in a De-mocracy: (a) the Public Order(Preservation) Ordinance (1958),(b) the Official Secrets Act 1972and (c) the Essential (SecurityCases) Amendments Regulations(1975). The first Prime Minister,Tunku Abdul Rahman, promisedin Parliament that the ISA wasmeant for the communists and notthe politicians.

Professor Hamid IbrahimProfessor Hamid IbrahimProfessor Hamid IbrahimProfessor Hamid IbrahimProfessor Hamid Ibrahimis the Executive Director ofis the Executive Director ofis the Executive Director ofis the Executive Director ofis the Executive Director ofthe Denning’s Researchthe Denning’s Researchthe Denning’s Researchthe Denning’s Researchthe Denning’s ResearchCentre, Malaysia.Centre, Malaysia.Centre, Malaysia.Centre, Malaysia.Centre, Malaysia.

q


Dear YB Chow and YB PheeDear YB Chow and YB PheeDear YB Chow and YB PheeDear YB Chow and YB PheeDear YB Chow and YB Phee

TBRA notes the press article in TheStar (25 June 2009) with some con-cern as it only talks about rectify-ing the steep slopes and thatTBRA has not heard of any othermeasures to be taken despite thesubmissions of memorandums,letters, police reports and othermeetings with state governmentofficials from February to June2009.

We have written officially to ourstate government via YB Phee andthe City Council (several times -be it through our memorandumand other letters, besides policereports) stating the following:-

a. That the geotechnical report iseither defective (as thegeotechnical report covers onlyLot 4189 while land develop-ment work is ongoing on atleast three other lots i.e. Lot4165, 4166, and 4188), OR

b. That MPPP is so slipshod orallegedly corrupt that there isno control over the land devel-

DEVELOPMENT

Take action against steephill-slope projectsFocusing on stabilising steep slopes alone is like givingmedication to a dengue patient without finding out the sourceof the disease

by George Aeria

George Aeria, the chairman of the TanjungGeorge Aeria, the chairman of the TanjungGeorge Aeria, the chairman of the TanjungGeorge Aeria, the chairman of the TanjungGeorge Aeria, the chairman of the TanjungBunga Residents Association writes to PenangBunga Residents Association writes to PenangBunga Residents Association writes to PenangBunga Residents Association writes to PenangBunga Residents Association writes to Penangstate government exco members Chow Konstate government exco members Chow Konstate government exco members Chow Konstate government exco members Chow Konstate government exco members Chow KonYeow and Phee Boon Poh to highlight the resi-Yeow and Phee Boon Poh to highlight the resi-Yeow and Phee Boon Poh to highlight the resi-Yeow and Phee Boon Poh to highlight the resi-Yeow and Phee Boon Poh to highlight the resi-dents’ deep concerns about property develop-dents’ deep concerns about property develop-dents’ deep concerns about property develop-dents’ deep concerns about property develop-dents’ deep concerns about property develop-ment projects on steep hill slopes in their area.ment projects on steep hill slopes in their area.ment projects on steep hill slopes in their area.ment projects on steep hill slopes in their area.ment projects on steep hill slopes in their area.


opment work to thepoint where anNGO like TBRAhas to come in to in-form the MPPP ofthe land develop-ment work on theother plots

c. That MPPP is notable to enforce itsstop work order inMay and early June2009 with ongoingblasting work stilloccurring. Proofvia photographavailable and will be madeknown shortly.

d. That MPPP has not monitoredthe work site well thus caus-ing floods, flying rock, dengueoutbreak, the removal of soil/earth from site.

e. That MPPP should not haveapproved this project in thefirst place as it is in contraven-tion of the June 2002 guidelinesas issued by the Ministry ofScience and the Environment.

To date, we have not received anyresponse from our CAT state gov-ernment. If at all you declare yourstate government to be transpar-ent, then perhaps an official replyto address our residents concernsvia our memorandum in Apriland our subsequent letter to youon 2 June 2009 should be forth-coming.

Just addressing the steep slopesis like giving medication to a pa-tient for dengue without resolvingthe bigger issue of the source ofthe dengue.

TBRA expects that work tostabilise the now very steep andClass IV hill-slope is to be done.However, the larger issues still

persist and must be addressedfailing which this error againstnature and the residents will oc-cur again and again. Stabilisingthe slopes is the responsibility ofthe developer and City Council(which approved the project in thefirst place). It is not something weshould be grateful for. It is theirjob to get it done. Do it quickly be-fore it slides down and kills resi-dents.

Thereafter, we reiterate that theissues at hand today as clearlyseen via the dangerous hill slopeprojects such as those like BoltonSurin, Ivory, Solok Tan Jit Seng,and Diamond Villa are:-

a. a complete and total ban of allClass III and Class IV hill-slopes in Penang, and a decla-ration by our CAT DAP StateGovernment accordingly.WALK YOUR TALK.

b. that action be taken against thepeople in MPPP who havefailed in their duties in approv-ing these dangerous type ofprojects (e.g using the BoltonSurin as a case study)

c. that action be taken against thepeople in MPPP who havefailed to monitor and stop the

transgressions intothe other lots (e.g. us-ing Bolton Surin as acase study)d. that action betaken against thepeople in MPPP whohave failed to properlymonitor the project tothe point of causingdistress to residents -floods, flying rocks,dengues etc.e. what happensafter the developermoves away? Who

monitors and maintains thatnow Bolton and MPPP-causedslope in Chee Seng Gardenswhich is now so steep - classIV?

f. will MPPP be managed better,and if so, what measures havebeen put in place (call it SOPs,if you like) so that the graveerror of approving steep anddangerous hill-slopes stopsonce and for all?

We will appreciate a responsefrom our CAT State Governmentby tomorrow (26 June 2009) as wehave not received any formal re-ply from our state governmentsince we submitted the memoran-dum and our petitions to YB Phee(and YB Chow and CM, via YBPhee) at the State Assembly on 27April 2009 and our subsequentletter dated 2 June 2009. Shouldwe still not receive an official re-sponse, TBRA will take whateverother action deemed necessary tohighlight this matter in the press(on the inaction of our state gov-ernment) as well as to make a re-port of possible corruption to theMACC regarding the manner inwhich the MPPP approved thisand other similar potentially dan-gerous hillslope projects.q


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heir bodies were shackled but theirthoughts roamed free … political prison-ers detained without trial after successivewaves of mass arrests sought sanity in their

solitary cells by committing to paper poetry, proseand song that affirmed their unwavering beliefs andundaunted spirit. They drew inspiration from kin-dred souls who had given their lives and strengthto the liberation of mankind; they resolved to staythe 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, thehuman mind cannot be contained in narrow cells.

Decades after they were silenced by being lockedaway or forced to flee, seven of these brave men andwomen have found voice in a slim volume, OurThoughts Are Free: poems and prose on imprisonmentand exile. Among them, the late James Puthucheary,author of the seminal Ownership and Control of theMalayan Economy, which was written while in de-tention, had the distinction of being imprisonedwithout trial three times, under both the colonialand Lee Kuan Yew regimes – in 1951, 1956 and 1963– spending a total of about five years in jail.

Said Zahari, an icon in the world of journalism andliterature, was banned from Malaysia for leadingthe Utusan Melayu strike in 1961 which sought toprevent the takeover of the newspaper by Umno. Aday after he took up the post of President of the PartiRakyat in Singapore, he was rounded up togetherwith more than a hundred other social and political

activists in Lee Kuan Yew’s infamous OperationCold Store on 2 February 1963. (Operation Cold Storewas aimed at crippling the Barisan Sosialis, whichrepresented a real threat to the People’s Action Party(PAP) government, by arresting its leaders and keyassociates like trade unionists, many of whom wereerstwhile “comrades” of Lee Kuan Yew.) He wasnot to be released until 1980.

A third contributor, the late Ho Piao, was a youngidealistic trade unionist “in search of a purpose and

BOOK REVIEW

Vistas of detention...voices of freedomLong years have passed, yet the fire that burns in their heartsremains aglow

by Tan Pek Leng

TTTTT

Seven courageous individuals


sense in life” when he too became a victim of Opera-tion Cold Store and would spend 19 of the primeyears of his life behind bars. The length of his deten-tion was exceeded only by that of Chia Thye Poh’s,which lasted 21 years.

Yet another trade unionist, Tan Jing Quee, was de-tained in Operation Pechah in October 1963 aimed atbreaking up the 48-hour general strike called by theSingapore Association of Trade Unions – of whichhe was a leader – to protest against the deregistrationof trade unions by the government. This detentionin Changi Prison lasted three years. In 1977, TanJing Quee was arrested again and incarcerated forthree months on allegation of being involved in thecampaign to expel the PAP (Singapore’s rulingPeople’s Action Party) from the Socialist Interna-tional.

Our Thoughts Are Free also features the poems andsongs of Francis Khoo Kah Siang, who was a targetof arrest in the 1977 swoop. As the Special Branch(SB) officers banged on his door and waited outsidehis home, Francis Khoo remained silently within.The SB men finally left after an all-night wait, think-ing he was not in. Thus was he able to escape arrest;then taking advantage of the Chinese New Yearcrowd at the causeway to make his way to Malaysiaand then London – barely two weeks after his wed-ding. He has been in exile since. He lamented thatwhen he looked at photos of his wedding dinner, hecouldn’t help but note that many of the friends whograced the occasion were subsequently detained.

The last two contributors, Teo Soh Lung and WongSouk Yee fell prey to Operation Spectrum which saw22 Roman Catholic Church social activists and pro-fessionals being accused of involvement in a Marx-ist plot to subvert the Singapore government. TeoSoh Lung’s crime was deigning to dedicate herselfto providing legal aid to the needy while Wong SoukYee was detained twice for a total period of 14months, first for giving vent to her creative energythrough the stage, and subsequently for refuting her“TV confession”, which she surmised had been dis-torted by the Internal Security Department and theSingapore Broadcasting Corporation.

As another former detainee, Koh Kay Yew, explainedat the Malaysian launch of the book on 16 May 2009(it was launched in Singapore on 28 February, 2009),the ISA detentions were meant as pre-emptive strikesto nip all dissent in the bud. The aim was to “suit-ably neutralise” these “enemies of the state” withinthree months and have them appear on television torecant their “wrong doings”. Those who refused todo so had to pay the price in the form of years of theirlives being snatched away. As we had noted earlier:Chia Thye Poh, 21 years; Ho Piao, 19 years; SaidZahari, 17 years; and others like Dr Lim Hock Siew,19 years, and Dr Poh Soo Kai, 16 years.

During their incarceration, the state conducted asystematic programme, including physical torture,to dehumanise and break the detainees. Strong as

Systematic programme


they may be, virtually all the detainees suffered post-traumatic disorder, and some of them went throughmental breakdowns, as Koh Kay Yew related.

On the personal level, the brief and sparse encoun-ters with loved ones were bitter-sweet as JamesPuthucheary lamented:

They will not let you stay or let me goCome over with laughter and chatterThe longing, the anguish of partingI can do nothing but watch you go

(Longing, 22 November 1958. See full poembelow)

And the prolonged separation was agonising, asSaid Zahari wrote in a hari raya card to his wife:

How cruel, how inhumane!So high, so hugethis partition between usFor so long!(Tears, 20 November 1969)

Perhaps even more distressing was the anguish thatengulfed him while he awaited news of the birth ofhis child three months into his detention:

for months in solitary,it was a source of anxiety;for hours to this moment,it is endless excitement

then came news ofthe arrival of my little one.(Born Unfree, 22 May 1963. See full poem onnext page)

These men and women whose only offence was tochampion the cause of social justice were deprivedof the opportunity to live a full and meaningful life.Their daily pursuits were reduced to looking for-ward to a “few minutes of fresh air and exercise”and the pink packets of “roast kachang and khanaand cheap sweets” which they were allowed to pur-chase “from Saturday canteens”. Such were “life’sluxury within these gray walls”.

And yet, they did not languish in despair. They werereining in their resolve to fight another day or cajol-ing others to join their crusade. Said Zahari stoodhis ground despite the relentless attempts at break-ing his spirit:

Longing

They will not let you stay or let me goCome over with laughter and chatterThe longing, the anguish of partingI can do nothing but watch you go.

Time knows nothing of love and sorrowThe clock is merciless, relentless

And hurries along without pityI can do nothing but watch you go.

Could my heart make the clock go slowThen impale it on the minutes handAnd let my heart tick with the clockI can do nothing but watch you go.

Go, go, softly unto the breeze, goLet me drink in deep your fragrance

And await in the evening windFor I can do nothing but watch you go.

22 November 1958

Standing their ground


the day before you heard my protestyesterday you heard my appealtoday you see my hatredand waitfor tomorrow when I shall act

my decision has been madea resolve has been chiseled

this crueltythis evil

can no longer be allowedI shall oppose it with all my strength(Resolution, 1963)

And James Puthucheary exhorted a loved one:

… if you feel for me, then with me callCall to all those who live to be freeAnd not contain human minds in narrow cellsWho risk death that others may liveAnd with them choose to die if nothing else.(The Steel Door Opens and the Warden Cries, 1952)

Always, they found strength and inspiration in thefortitude of their comrades who stayed true to theirbeliefs and convictions. Tan Jing Quee paid tributeto Chia Thye Poh and found:

There is a certain immortalityIn your tenacity, your courage –Resolute, unyielding, pure,Turning the wheel of solitary decadesTime, like flowing watersMoves relentlessly on, never retreating,Until an irresistible tide shall riseTo propel the human will to overcome.(For Chia Thye Poh, July 2002)

And James Puthucheary memorialises his dearfriend and comrade, William Kuok, who gave hislife to the anti-colonial struggle and lies buried inan unknown grave in the jungles of Pahang, thus:

We will not weep, not even a dropOr hang our heads down or beat our breastsFor you have lived your life in full, notSeared by the shame of a cowardly past.

Long years have passed, yet the fire that burns in theirhearts remains aglow, the bonds that bind them re-main as strong. The intimate crowd of former detain-ees, their friends and family who travelled from as faras London, Hong Kong and Singapore to attend thelaunching of Our Thoughts are Free had come to keepfaith with each other and to affirm that as long asdemocracy continues to be “deformed” in Singapore,their quest for reform would not cease.

Born Unfree

not that I was not hungryI refused the food;

nor that I was not sleepyI kept awake.

my ears keep hearingthe cry of an infant.

for months in solitary,It was a source of anxiety;for hours to this moment,it is endless excitement.

then came the news ofthe arrival of my little one.

I am the fatherrobbed of my freedom

whose world has shrunkinto a dark little dungeon.

my child, just borninto a world yet unfree

22 May 1963

q


ublic perception ofNGOs such as Aliran,I’m told is, that they aretoo opposition support-

ive. That superficial popular per-spective is probably because suchorganisations and individualslinked to them frequently speakout when they perceive inequal-ity and injustice by theestablishment’s machineryagainst the frequently suppressedpolitical opposition ormarginalised communities.

This popular perception, held for30 odd-years by pro-establish-ment organisations and individu-als, comes as no surprise whenAliran and like-mindedorganisations have for a similartime span remained independentand critical of ruling party poli-tics and policies. Such policieshave in the long run created anepidemic of corruption, destruc-tion of the rule of law and a grow-ing incidence of violence on civil-ians by security enforcement bod-ies.

Would 8 March 2008 have been alandmark election year had these“prophets of doom”, dissenters

and critics not taken the respon-sibility of voicing their concernsabout the existing system and de-manded change for the good of allMalaysians? Would people realisethe discrepancies and injusticescommitted in secret if the main-stream media remain cowed into

disseminating half-truths or out-right propaganda? The main-stream media have frequently,conveniently neglected their dutyto report truthfully things deemedunfavourable to the establishmentthrough news blackouts and self-censorship amongst other things.

DEMOCRACY

‘ P r o p h e t s o f d o o m ’provide hopeDissenters, critics, whistle blowers and ‘prophets of doom’ areessential cornerstones for building an accountable and justdemocracy.

by Angeline Loh

PPPPP

8 March 2008: A landmark election8 March 2008: A landmark election8 March 2008: A landmark election8 March 2008: A landmark election8 March 2008: A landmark election


Fortunately, we have been savedfrom becoming completely relianton submissive and near syco-phantic media through advancesin information technology, in-creasing the potential for democ-racy in this country. If not for theonline critical discussion and ex-ercise of freedom of expression incyber space, more Malaysianswould be blindly supporting avirtually totalitarian governmentin feudal subservience and sub-missiveness. Is this what Malay-sians want?

The answer is obvious from theresults of the 8 March 2008 elec-tion ‘tsunami’, the PermatangPauh by-election that put PKRleader Anwar Ibrahim back inParliament, and the recent KualaTerengganu by-election victory forPakatan Rakyat.

Yet those undecided as to theirstance still bemoan in apparent‘righteous indignation’ the fact ofcriticism of the ruling party andthe workings of administration asanti-social and unhealthy for thecountry. Why is this so, when atthe same time they continue toenjoy the gains of democracy andgreater freedom that a number ofthem have made no effort to bringabout much less bothered to sup-port in the past? Such chameleon-like unscrupulousness and immo-rality is the real danger to democ-racy, not the critics, dissenters orthe “prophets of doom”.

Those inclined to run with thehare and hunt with the hounds atthe same time, serve to distort theconcept of democracy by demean-ing the necessity for checks andbalances to sustain a healthydemocratic political environmentanchored to a foundation of jus-

tice and fairness.

Malaysians wanted change andthey got it. Do we realise what weare asking for and the implica-tions of it? More importantly, dowe know why we want change orwhat the requirements of a just de-mocracy are?

For the past 51 years or so, whathave Malaysians in generallearned about democracy whenwe have been living within apseudo-democracy? Education,in our experience, has been mod-elled on a factory production linewhere absorbing wholesale and‘regurgitating’ a vast amount ofwhat we have learnt by rote isthought to be the right way tolearn. We have never been taughtto examine critically the knowl-edge we absorb. So, what exactlyhave we learnt?

Our authorities have taught usthat it is wrong to be different incharacter or hold a different opin-ion from what they have ap-proved and hold as true. In short,we have been inculcated with theinability to question existing con-servative structures, even if theyare unjust and violate our consti-tutional and human rights.

We have also lived in mute accep-tance of prejudice and injusticeagainst marginalised people andthose with the courage to defendthem. We live in fear of being pun-ished, ostracised and imprisonedfor shouting out against such im-moral oppression.

We have been fed with conserva-tive and extreme ideas and halftruths by media controlled by re-pressive laws and rendered sub-servient to the powers that be. Thedouble standards practised gounchallenged by a majority of us,in mute or grumbling acceptance.By this, we surrender control ofour lives to the political whimsand fancies of those in power.

The powers that be tell us that tohave a voice is to assimilate alienculture; therefore the peopleshould remain dumb. It is un-Malaysian to be open about ourdiscontent when practices, poli-cies and laws increase our suffer-ing and make the standards andquality of our lives worse thanbefore. When we are on the brinkof starvation and deprivation, arewe expected to remain silentlyapproving of the increased pros-perity of the wealthy and power-ful at our expense?

Our life experience as citizens ofthis country is not one of democ-racy but of feudal serfdom and tra-ditional autocracy. We do notknow what living in a democracyis; all we have learnt is that suchideals are mere facades to pleasethe outside world.

What then is democracy? Howdoes one live in a democracy?

Condemnation of dissent has be-come an accepted reaction. Manywould express uneasiness (evenif secretly agreeing) with any ideathey think will attract adverse at-tention or disrupt the status quo,no matter how realistic, logical or

“Dalam belengguke j a h i l a n ”

(In the shackles ofi g n o r a n c e )

March 8/08– a rebe l l ion

or revolution?


just. In a devious way, dissent orcriticism is interpreted as a per-sonal affront, especially in tradi-tional conservative thinking thatis inevitably authoritarian in char-acter. Consciously or not, the herdmentality kicks in to preserve thestatus quo and kill potentialchange.

This apparent need for status quopreservation and perpetuationreveals a deep-seated fear ofchange. The change-agent, thecritics and ‘prophets of doom’ areheld up as the evil ones whoshould be made an example of.The whistle-blowers should besilenced, if necessary. Thesethreaten not only the status quobut also the vested interests ofthose clinging to the reins of powerfounded on a network of croniesand corruption.

We have taken the first step to-wards change; but is this enough?Still tipsy from our new found‘people’s power’, we are yet un-clear what shape our democracywill take. There seem to be no defi-nite guidelines or definitions asto what democracy is in the Ma-laysian context. Some appear tobelieve that having the right tofreedom within a democracy is li-cence to act irresponsibly or ille-gally without consideration of therights of other human beings insociety. Democracy is equatedwith anarchy.

This appears to be the perceptionof democracy promoted by thecurrent federal administration tojustify repressive measures andpolice brutality againstdefenceless citizens. It is an excuseto curtail freedom of expression,assembly and basic human rightsthat others living in more demo-

cratic societies enjoy as of right.

If Malaysians continue to hope forexternal redemption and fail tosee the need to realise their owninner strengths, weaknesses andpowers to create an accountableand responsible democracy,March 8/08 was only a reaction-ary rebellion, not a revolution.

Conversely, if March 8/08 is to bea true turning point, then the cata-lysts for change are necessary. Wehave to question ourselves andweigh the arguments advocatedby the critics, dissenters, ‘whistleblowers’ and ‘doom mongers’who have all this while de-manded the attention we havebeen too wary to give them.

The fear of dissenters and criticshas become second nature to mostMalaysians. We may boast ourapparent liberalism and multi-ra-cialism, yet deep down do we trulybelieve that boast? Is Malaysiansociety prepared to be truly multi-racial and equal? Only those whohave tested the water can tell howhot it is.

If not for the dissenters, critics and‘doom’ mongers, March 8/08 andall other system changes in theworld would never have hap-pened. The world would still beas it was millennia ago whereonly the strong and powerfulwould thrive by exploitation andsubjugation of the weakest andpoorest in society. Terror wouldreign unchallenged and un-checked.

The ‘March 8/08 Peoples’ Bal-lot Declaration for Change’ is a

C o r n e r s t o n e sof a democracy

blessing in disguise and an op-portunity for us to review ourperspectives and perceptions ofthe society we live in and wantto see in future. It is time towiden our knowledge, examineour options, including thoseproposed by the dissenters andcritics that were condemned inthe past by the establishment assubversive, unconventional andan alleged threat to those inpower.

The electorate need to educatethemselves to become less drivenby popular emotion and blindherd mentality. We have toachieve the capacity for criticalthinking and reasoning, andabove all, honesty with our-selves. We must realise that ourpolitics is driven by us, thePeople, with the political willand determination to achieveour goals, not by overlords andmanagers whom we appoint.The consequences of over-lord-ship, we know well by experi-ence. We should stop hoping tobe saved by external forces. Thecapacity for self-determinationis within us.

Thus, the dissenters, critics,whistle blowers and ‘prophets ofdoom’ are essential cornerstonesfor building an inherently respon-sible, accountable, transparent,and just democracy. The impor-tance of these agents of changeshould not be under-estimatednor diminished, as it is they whoare the nation’s alarm systemwhen inequality and injusticearise or things go wrong insociety’s body politic. They main-tain our society’s equilibrium bytheir advocacy. Without them,democracy and justice cannot ex-ist.q


he controversy sur-rounding Chin Peng’sreturn to Malaysia is notcoming to an end yet.

First it was the Court’s decisionand then the Government’s deci-sion that Chin Peng should notbe 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 thecommunist’s terrorism of the fif-ties. My father’s house and hissister’s were razed to ashes by thecommunist terrorists, simply be-cause my father was a Penghuluand deemed by the communiststo be onthe side of the government.But what about my aunt? Prob-ably being the Penghulu’s sisterwas reason enough to burn herhouse as well. That was the depthof the communists callousness.

But a few years ago I happened toread Chin Peng’s Memoir. I can-not but conclude that Chin Pengwas a freedom fighter, rankingwith Tok Bahaman, Mat Kilau,Tok Gajah of Pahang and TokJanggut of Kelantan who foughtthe British colonialists. The dif-ference was Chin Peng chose thewrong path both in political phi-losophy and its modus operandi toforce the British out of the coun-

COMMENTARY

Traitors and terroristsTok Bahaman, Mat Kilau, Tok Gajah and Tok Janggut weredubbed “traitors” by the British and Chin Peng and hisfollowers were dubbed “terrorists”.

TTTTT

by Dato Hishamuddin Bin Haji Yahaya


We have lost our loved ones tooduring the Emergency years. Butthink of it, were they not incidentsof war, that happen everywherein the world whenever there iswar. Those killed by the commu-nists were mostly members of theArmed Forces who were deemedto protect the British government’sinterests, the very government theywere fighting against. Apart fromthe existing Armed Forces, the Brit-ish made a special recruitment ofthe Special Constable (SC) whosemain responsility was to protectthe British rubber estates. Theywere the British government’s op-eratives to all intent and purposeand the communists saw them astools and collaborators of the im-perialists.

Yes the communists occasionallydestroyed our railway system andwater supply which caused a lotof inconvenience and loss of rev-enue. But all of us know in war,work of sabotage is part of wargames. The communists too suf-fered death through hunger, whenthe government decided to cut offtheir food supplies by settling allthe isolated villagers into con-trolled areas now known as “NewVillages”. But we cannot say thatdepriving the communists of sus-tenance was in violation of humanrights, because the country was ina state of war. But once the war isover, all should be forgotten andforgiven. Should not Chin Pengbe forgiven?

try. It was not acceptable to theMuslim populace as well as theChinese capitalists in this coun-try.

Tok Bahaman, Mat Kilau, TokGajah and Tok Janggut weredubbed “traitors” by the Britishand Chin Peng and his followerswere dubbed “terrorists”. But hewas a freedom fighter just like HoChi Minh who fought and de-feated first, the French, and thenthe Americans, in Vietnam. Theworld hailed Uncle Ho as a hero.

While Chin Peng, towards the endof the Emergency Years decidedto settle in Thailand, MusaAhmad (the Chairman of MCP)and Shamsiah Pakeh decided tosettle in Beijing. By British ac-count Shamsiah Pakeh was a ter-rorist attached to the 10th Regi-ment in the jungle of Pahang. Anillusive and influential commu-nist who could disappear withinseconds of sighting her. She wasshot many times but escaped un-scathed. She was rumoured to beinvincible. She was a terroristfeared by the armed forces and areward put on her head, dead oralive.

I happened to read ShamsiahPakeh’s Memoir too. By her ac-count she was never aterrorist.Throughout her jungledays in Pahang, she was neverarmed, let alone harm, anybody.Her responsibility was recruitingcadres for the women’s wing ofthe MCP. But her “terrorism” wasso much spoken about, that weboys in Temerloh, Pahang, knewher name well, along with othercommunists like Wan Ali (KualaLipis), Manaf Jepun (Temerloh),

Abdullah C D and many others.

But despite her “terrorism” as al-leged why was Shamsiah Pakehand Musa Ahmad allowed to re-turn to this country? What’s thedifference between them and ChinPeng in the communist hierarchy?Musa Ahmad was the Chairmanof MCP and Chin Peng was theSecretary-General. All of themapplied to return on humanitar-ian ground: to spend their lastdays in the country of their birth.

What can Chin Peng do at his age?Furthermore, what can a man ofChin Peng’s age do to revive theMCP? And if there is an iota ofevidence against him, detain himunder the obnoxious ISA. Is notthe ISA a potent political weaponof the BN government.

Yes, a particular group may saythe return of Chin Peng may re-vive the memory of bitter fightingwith the communists. What morefor those who are still alive andwho have been incapicated by theloss of sights and limbs, or the lossof loved ones.

But why single out Chin Peng?Did not the Japanese soldiers whocame to invade Malaya in 1942commit untold atrocities, plunder-ing, raping and killing innocentpeople including women andchildren? How many innocentcivilians were beheaded or put totorture and death in variousforms. How many civilians gottheir tongues cut off and theirlimbs severed? How many of ourparents and their parents hadtheir education interrupted be-cause of the occupation? Andhow many of us lost our grand-parents at the death railway inSiam.

Should not Chin Pengbe forgiven?

A feared terrorist

q

Dato Hishamuddin BinDato Hishamuddin BinDato Hishamuddin BinDato Hishamuddin BinDato Hishamuddin BinHaji Yahaya, DIMP, SAP,Haji Yahaya, DIMP, SAP,Haji Yahaya, DIMP, SAP,Haji Yahaya, DIMP, SAP,Haji Yahaya, DIMP, SAP,is a laywer and one timeis a laywer and one timeis a laywer and one timeis a laywer and one timeis a laywer and one timeMP for Temerloh.MP for Temerloh.MP for Temerloh.MP for Temerloh.MP for Temerloh.


y name is NorlailaOthman. I am a Malay-sian. I speak on behalfof my husband, Mat Sah

bin Mohd Satray, who has beendetained by the Malaysian gov-ernment under the Internal Secu-rity Act (ISA) for more than sevenyears. Under the ISA, the govern-ment can detain people withouteven the most basic of due processrights. The ISA is extremelybroadly worded and allows forindefinite detention without trial.My husband was detained inApril 2002 and is now occupyinga cell at Kamunting DetentionCamp, deprived of his liberty. Hehas never been charged and hasnot had the possibility of a fairand public hearing by an indepen-dent and impartial tribunal.

Under the ISA, the Malaysian ju-diciary has been systematicallyexcluded from playing any mean-ingful role in ensuring that thosedetained are treated in accordancewith international human rightsnorms. There is no effective judi-cial review. Habeas corpus is onlyavailable on narrow and techni-cal grounds. Judges cannot re-view grounds of detention and arenot shown the purported evi-dence against detainees.

The ISA allows for review of de-tentions by an executive-ap-pointed Advisory Board. The

Advisory Board has no power tofree detainees. It can only makenon-binding recommendations tothe government. Appearancesbefore the Advisory Board are afarce because the authorities neverdisclose evidence or documents tothe detainee.

My husband was first accused ofbeing a member of one terroristorganisation, then later another.However during the seven plusyears that he has already spent indetention, no evidence has beenproduced to substantiate the ac-cusation. Instead, he is requiredto attend counsellingprogrammes and encouraged toadmit the allegations against him.The authorities have yet to provehe actually engaged in any illegalactivity. Others arrested at thesame time as him have long beenreleased. He has been told theonly reason he is still detained isdue to my activism.

The Working Group on ArbitraryDetention has stated that the de-tention of my husband is arbitraryand contravenes Articles 9 and 10of the UDHR. I strongly urge theHuman Rights Council to visitKamunting Detention Camp andmeet my husband personally. Icall on the Malaysian governmentto facilitate this visit.

I hope the visit will lead to the re-

lease of my husband and otherswho are enduring the same expe-rience. In my case, the most af-fected victim is my only son,Suhaib, aged 16. The ISA sepa-rated Suhaib from his father whenhe was nine. For seven years, hehas been waiting every day for hisfather’s release. It is very sorrow-ful to see him grow up with thisuncertainty for such a long timeand being deprived of the love,care and guidance of his father.Not one person should be held indetention without trial as it vio-lates basic human rights. I amappearing here today not just forthe sake of my husband but alsofor all who continue to be de-tained without trial under the ISAand their family members.

I call on the Malaysian govern-ment to accept and implement therecommendations of the WorkingGroup on Arbitrary Detention re-questing the Malaysian govern-ment to take necessary steps toremedy my husband’s situationto conform with provisions andprinciples enshrined in theUDHR.

Time to abolish the ISA for goodTime to abolish the ISA for goodTime to abolish the ISA for goodTime to abolish the ISA for goodTime to abolish the ISA for goodNot one person should be held in detention without trial as itviolates basic human rights

MMMMM

Norlaila Othman is in-Norlaila Othman is in-Norlaila Othman is in-Norlaila Othman is in-Norlaila Othman is in-volved in the Family Sup-volved in the Family Sup-volved in the Family Sup-volved in the Family Sup-volved in the Family Sup-port Group of the Abol-port Group of the Abol-port Group of the Abol-port Group of the Abol-port Group of the Abol-ish ISA Movementish ISA Movementish ISA Movementish ISA Movementish ISA Movement(GMI).(GMI).(GMI).(GMI).(GMI).

HEART TO HEART"What comes from the lips reaches the ear,what comes from the heart reaches the heart" - Arab proverb

q


he Port Klang Free Zonedebacle showcases thedepravity of our clan-destine system of govern-

ment contracting and procure-ment, and will inflame the causeof open tenders.

No one can deny that transpar-ency and accountability are nec-essary. But are these principlesand practices sufficient to achieveMalaysia’s delicate imperative ofcultivating capacities efficientlywhile distributing opportunitiesequitably?

Abuse of public procurement em-bodies some of the worse elementsof the NEP gone astray and ag-grieve current and future taxpay-ers with filthy stinking wastageof their hard-earned dues. Costsmust be cut, contracts must bebared, the public must be in-formed. But, again, are these allthat need to be fixed?

The problem is not only the cor-ruption and pillage of publicfunds. We should also be ex-ceedingly upset that the NEPhas inadequately fostered genu-ine partnerships reflective ofour cultural diversity and hasfailed to cultivate a responsiblebusiness ethic.

I believe there is much more wecan do to leverage the governmentprocurement system to broadenour development vision, besidesensuring contracts go to the oneoffering the best combination ofprice and value. Governmentsneed to be bolder to say, if you wantto do business with us, who rep-resent the people and stewardtheir trust, you have to aim to servethe greater economic, social, andenvironmental good.

Since March 2008, alterations tothe tender system, both in Pakatanand BN administrations, offermore procedural than substantivechange. Proposed and imple-mented change amount more torepair and clean-up jobs than fun-damental reforms.

One of the more publicised andimplemented changes to the gov-ernment procurement process isthe introduction of a lottery sys-tem for class F Bumiputera-onlycontracts. Chief Minister LimGuan Eng, to his credit, started theball rolling on that, together witha commitment to open tender forlarger projects. But BN can doalso, and perhaps out-gimmick itsadversary. The Kuala Terengganuby-election grabbed headlineswith more online random draws

of class F contracts.

BN officialdom acknowledgesthat the system is broke, but hasnot indicated what specific policyand institutional reforms will bepursued. The Mid-term Review ofthe Ninth Malaysia Plan an-nounced, without any details,that “[t]he existing restructuringinstruments to enhanceBumiputera participation in theeconomy will be reviewed. Thesewill include the Foreign Invest-ment Committee Guidelines, pub-lic procurement procedures andthe Industrial Coordination Act,1975 .”

We have enough informationabout BN predilections, includingthe recent liberalisation of the ser-vices sector, to extrapolate thatmuch of the deliberation will re-volve around ethnic quotas andownership – and maybe make afew notes about corruption.

Some will advocate total elimina-tion of ethnic quotas as the su-preme solution and deem what-ever distribution of contracts as thefair market outcome. In otherwords, shock therapy. If ethnicitydoes not matter, it should not fac-

ACCOUNTABILITY

Public procurement:Abuses and challengesIt’s time to give the rakyat a preview of what ketuanan rakyateconomic and social policies will look like

by H A Lee

TTTTT

NEP legacy


tor into the selection process at all.

The chambers of commerce metLim Guan Eng soon after his ap-pointment as Chief Minister toexpress their support for hisopen tender policy. The PenangMalay Chamber Presidentqualified his endorsement byasserting that there must be “alevel-playing field for all races”.That is a curious statement; anopen tender policy would pro-cedurally give every bidderequal chance and same treat-ment. Of course, “level-playingfield” is code for “do not side-line us”. The implicit warningagainst bias, whether real orperceived, will be reinforced inthe event that Chinese busi-nesses turn out to be main ben-eficiaries of future tenders.

We should recognise that opentenders will make life harder forperhaps an influential and parti-san corps of contractors. Theyshould be pressed to perform andnot be coddled anymore, but theyshould not be dismissed or alien-ated. A lot is said about non-ra-cialism, and rightly so, but toolittle about non-partisanship. Inthis spirit, the concerns of cur-rently Umno-affiliated businessmust be given a fair hearing.

We may wish and declare that weare in a post-racial, post-NEP age,but alas, the NEP legacy compelsus to deal with its shortfalls in cul-tivating a Bumiputera managerialand professional community. Idon’t see how this can be shockedinto development. We need tochart a transition path that in-

duces a change in mindset andembraces broader social objec-tives while continuing to addressthe failures of past policies.

And that includes the ethnic di-mension. The problem is not thatethnicity is part of policy; the prob-lem is that it has consumed poli-cies, which moreover have oper-ated without clear rules.

So, back to the proposal of lever-aging the government tender pro-cess to compel reform. The unpar-alleled advantage of this avenue,over regulation and persuasion,is that governments directly tugthe public purse strings and canauthoritatively set the terms ofaccess to the funds.

Compelling change


On the whole, the governmentprocurement system envisagedhere will need to strive for a bal-ance of a broader set of objectivesalongside the imperative of effi-ciency. It will be structured to pro-vide incentives, perhaps by adopt-ing a points system according tothe above criteria, for companiesto do better across a spectrum ofdesirable outcomes besides price.The lowest bidder may indeed getthere by compromising labourand environmental standards.

Applications and approvals mustnot get choked in red tape; firmsshould not be overly burdened. Wewill probably need to inject somedegree of flexibility, for instance,exempting small- and medium-scale enterprises from meeting allthe criteria and permitting themto select a few to pursue.

But those are details that can beironed out.

The question is, are we going tomerely repair or truly reform theway government spends moneyand engages with business?Pakatan Rakyat is better posi-tioned to offer substantive change,and has taken piecemeal steps tochart a new course.

Now it’s time to give the rakyata concrete , ful l -bodied pre-view of what ketuanan rakyateconomic and social policieswill look like.

This approach could also re-orientus towards providing incentives forbusinesses to do a range of goodthings for society, away from theentrenched habits of laying downquotas and getting pre-occupiedwith ethnicity and ownership.

We can draw on the experience ofother countries trying to achievesimilar objectives. In South Africa,companies compete for govern-ment contracts on price and qual-ity, but can score bonus points fordemonstrating composition ofownership, management and em-ployment that are representativeof society, as well as for upgrad-ing skills and committing to othersocio-economic objectives.

Of course, these thoughts are pre-liminary – we need to think thisthrough carefully. Unlike the BN-style of top-down quick-fixes withfanfare, let’s have a thorough dis-cussion to formulate a binding setof rules, with a judicious blend ofstatutes and discretionary space.

The process of awarding govern-ment procurement could evaluatebids on the following criteria:

1 . Price and quality of bid andcompany track record. This cri-terion must of course take pre-cedence, and be accorded thehighest weightage. But thereare at least seven other areasworth considering.

2. Employment creation andtraining, and remunerationpaid to workers. To induce cre-ation of decent, well-payingjobs and skills upgrading, weshould reward companies thatshow a good track record andcommit to advance growth inthese areas.

3 . Ethnic and gender compositionof management. We should re-ward companies to the extenttheir management teams arerepresentative of our socialtapestry.

4. Ethnic and gender compositionof professional positions, andof workforce on the whole. Pri-ority should be ascribed tocompanies that demonstratemore commitment to diversityin their ranks.

5 . Development of new enter-prises or subsidiaries, throughthe sourcing of inputs or sub-contracting of jobs. Higher pri-ority can be given to compa-nies that have supported theestablishment of new up-stream or downstream affili-ates.

6. Employment of disabled per-sons. We can assign bonuspoints to companies that pro-vide meaningful jobs to mem-bers of this long-neglected seg-ment of society.

7. Environmental conservation.Similarly, this can operate as abonus: extra points for operat-ing in ways that conserve en-ergy or preserve our ecology.

8. Social investment. This is abroad category, and deliber-ately so, to encompassmyriad forms of investmentthat yield profits to society,like health and sports facili-ties.

Evaluation must be based on pastand proven performance, notpromises and plans. We can setbenchmarks and targets whileavoiding rigid quotas.

Towards real reforms

HA Lee is a doctoral stu-HA Lee is a doctoral stu-HA Lee is a doctoral stu-HA Lee is a doctoral stu-HA Lee is a doctoral stu-dent in economics at thedent in economics at thedent in economics at thedent in economics at thedent in economics at theUniversity of Massachu-University of Massachu-University of Massachu-University of Massachu-University of Massachu-setts, Amherst.setts, Amherst.setts, Amherst.setts, Amherst.setts, Amherst.

q


he resounding defeat ofBJP in the 2009 elections,decline in number ofseats and decline in vot-

ing percentage prompted variousBJP insiders and sympathizers todo some introspection. Where didthe party go wrong? In his piecein Times of India (4 June 2009),Swapan Dasgupta feels that BJPhas got too much identified withHindutva, which is no more ap-pealing to large section of Hindus;so it needs to come out of this im-age for a makeover. SudheendraKulkarni (Tehelka, 13 June 2009),looks at the defeat as close Advaniaide and also as an insider andpoints out that Advani was notsufficiently backed up by RSS andBJP. He also says that BJP’s imple-mentation of Hindutva looked tobe anti-minorities and that itslinks with RSS need to be given asecond look.

Kulkarni projects as if Hindutvais all inclusive, Hindu identity iscore of Indian nationalism, andcultural nationalism is not meantfor Hindus alone. One can inferthat Kulkarni basically stands bythe core RSS concepts ofHindutva, cultural nationalism

and integral humanismand finds BJP practicesfaulty in this direction.One can point out thatsince Kulkarni is an in-sider, associated withBJP from the times ofAdvani’s Rath nay,blood yatra, and is closeto the top echelons of BJP and thathe had all the time to point out toBJP leadership as to how theirpractice is deviating from thegenuine Hindutva. One is not surewhether this has been done insidethe party forums; anyway, let’skeep that aside.

Concepts and ideologies are notmade in the thin air. They reflectthe needs of social groups. Theseterms couched in the language ofreligion were devised by ideo-logues of declining sections ofHindu society, the landlords andBrahmins from the early 1920sonwards. The term Hindutva inparticular came into being as thepolitics of Hindu Mahasabha andRSS. It stood for the politics of Hin-dus, for the building of HinduRashtra. This word was coined bySavarkar in 1920s and was meantto be an alternate notion of poli-

tics to the one being articulated bythe national movement led byGandhi. A similar concept of na-tionalism, based on the values ofliberty, equality and fraternitywere also articulated byAmbedkar, while the third majorstream during the freedom move-ment, Bhagat Singh and the Com-munists, dreamt of a socialist so-ciety, based on the notions of sub-stantive equality and state regu-lating the social relations to en-sure this equality.

It must be pointed out that the con-cept of Hindutva aims at Hindunation, in parallel to the conceptof Muslim nation being pro-pounded by the Muslim League,and in opposition to the conceptof democratic secular nation, theconcept for which the nationalmovement was working. This In-dian nationalism is all inclusive,

INTERNATIONAL

Election verdict 2009:Whither BJP?One hopes that with the decline of the BJP, those strugglingfor democratic space and the rights of the downtrodden willcome to the fore

by Ram Puniyani

TTTTTL.K. Advani of BJPL.K. Advani of BJPL.K. Advani of BJPL.K. Advani of BJPL.K. Advani of BJP


inclusive of all religions, castesand both genders. The conceptsof Hindu and Muslim nations areexclusive concepts. The secondpoint is that the Gandhi-Ambedkar nationalism was basedon the equality of caste and gen-der while HIndutva and the ide-ology of Muslim nationalism werea continuum of the feudal values,the harping on caste and genderhierarchy. In the same directionlater, Deen Dayal Upadhyay, theideologue of RSS-BJP, very clev-erly put up the concept of integralhumanism. This concept arguesthat as any organism is well bal-anced due to the division of workbetween different parts of thebody, similarly different socialgroups perform different well de-fined tasks to provide the equilib-rium for the proper social func-tioning. This in a way talks of sta-tus quo in the caste and genderrelations prevalent in society.

Similarly, cultural nationalism aspropounded by RSS and adoptedby BJP stands for the eliteBrahminical culture as the syn-onym for Indian-ness. All in all,this is precisely what RSS definesand BJP has practised so far.There cannot be equal place fordalits, women and non-Hindus inthis scheme of things. SwapanDasgupta feels BJP has to dropHindutva to provide an alterna-tive based on good governanceand non-dynasty politics.Kulkarni’s reading of Hindutvaand integral humanism is fromthe world of make-believe, totallyoff the mark. The simple questionis why were these practitioners ofHindutva and cultural national-ism aloof from the national move-

ment? It is this national movementwhich laid the basis of India andachieved India’s independence.These streams which take thecover of glorious traditions focusonly on those traditions that areelitist. In the Indian context, theconcepts Hindu nationalism andMuslim nationalism derive theirlegitimacy from the Brahminicaland Ashrafs (Muslim elite)streams respectively. Why can’tRSS-BJP say that they are prima-rily loyal to the values of Liberty,Equality and Fraternity anddump all those concepts builtaround religious identity? It isbecause these religion-based con-cepts are the best cover for the op-pression of women, dalits andnon-Hindus. And in turn theseconcepts also demonise, intimi-date and commit violence againstminorities, trying to reduce themto second-class citizens.

The BJP could come to power onlybecause of their harping on theidentity of Lord Ram. The BJPdoes hold Ram as the symbol ofIndia’s identity. This is one of theexpressions of their cultural na-tionalism. The question ariseswhy only Lord Ram is the symbolof India; why not Shambuk or Balior Sita? In a nutshell, their cul-tural nationalism picks up thosecharacters which suit the interestsand agenda of the Hindu elite.Surely, had the Ram temple agita-tion not occurred, had the Babrimosque not been demolished andthe Mumbai and Gujarat violencenot been instigated, the BJP wouldhave been on the margins of In-dian society. Its raison detre is thatit is the progeny of the RSS andthat it is related to the VHP andBajrang Dal, whose vagaries itkeeps defending most of the time.It is thoroughly exclusionist and

that’s why it justifies the Gujaratviolence and Kandhamal, rejectsSachar committee etc. It is not amere coincidence; it is the core ofthe BJP’s politics. It is not that theconcept of Hindutva isinclusionary and the practicefaulty, the very concept ofHindutva is exclusionary, intheory and practice.

Can BJP throw away Hindutvaand their aim of building a Hindunation around the glorious Hindutraditions of Manu Smriti? Thequestion is misplaced as the BJPis nobody to decide that. The BJPis merely a political arm of theRSS; it is the RSS which has todecide that. Can the RSS cut itsown legitimacy off by renouncingHindutva? The question does notarise. The RSS essentially is aimedaround these goals. Kulkarni’sconfusions and his welcome con-cern about poor, minorities anddalits are misplaced as those arenot the concerns of the RSS; theyhave never been and can never bethe concerns of the BJP and com-pany. Hindutva or integral hu-manism is a cleverly worded dis-guise to undermine the concept ofdemocracy. The last two decadeshad been a nightmare where thevalues opposed to Indian nation-hood asserted themselves aggres-sively, bringing immense miser-ies. One hopes with the trend ofdecline of BJP, those striving fordemocratic struggles, struggles forequality and the rights of dalits,women, adivasis, workers andminorities will come to occupy themain social space and protect thenation from the damage done bythe politics in the garb of religiousidentity.

Source: Issues in Secular Politics, June2009 III

BJP’s exc lus ionaryw o r l d v i e w

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The Court of Appeal’s ruling asto who the legitimate MenteriBesar is has not in any way re-solved the political crisis that thestate of Perak has been embroiledin. That is the first point.

The sanctity of the the prin-ciple of the separation of pow-ers has been unceremoniouslyviolated and sacrificed for po-litical expediency. That is thesecond point.

A peoples’ government dulyelected and determined by 53 percent of Perakians has been over-turned. That is the third point.

The betrayal of three renegadeswho jumped ship for selfish rea-sons has been legitimised as con-tributing to the so-called majorityof the Barisan Nasional that al-lowed the BN to ignore and dis-miss the electoral process. That isthe fourth point.

Through manoeuvring and ma-nipulation, the peoples’ will has

been subverted with impunity.That is the fifth point.

We can safely assume that the tworenegades who have beencharged in court will not be foundguilty either because the case maybe dropped or there may not besufficient incriminating evidence.That is the sixth point.

It has been established that Article72(1) of the Federal Constitutioncan be discarded and it will ap-parently become irrelevant in fu-ture cases involving the Opposi-tion. That is the seventh point.

In future no motion of confidencewill be allowed or recognised inthe Perak State Assembly becauseit is not specifically provided forin the Perak State Constitution.That is the eighth point.

Speaker Sivakumar, if he claimsto be the legitimate authority of theHouse, will be rudely draggedaway from his seat by the ser-geant-at arms amply assisted bythe ever-willing police. That is theninth point.

Any Pakatan assembly memberwho dares to challenge the BN-installed Speaker’s legitimacywill be suspended without anyemolument. That is the tenthpoint.

This will be the scenario of Perakpolitics. This will be the corruptedversion of our democratic processthat will continue to shame us andhaunt us until the people have theopportunity to right this gravewrong when the assembly is fi-nally dissolved.

The court-appointed MenteriBesar Datuk Dr Zambry Abdul

A record of A record of A record of A record of A record of Aliran'sAliran'sAliran'sAliran'sAliran's stand on current affairs. stand on current affairs. stand on current affairs. stand on current affairs. stand on current affairs.

The time of reckoningwill come


Kadir has stated, “I believe thatpeople will be able to see the truthnow.”

No, Datuk, they have not seen thetruth but they saw the farce thatfrustrated the democratic will ofthe people.

The court of law may have ap-pointed you as the MB but thepeoples’ court will definitely re-verse this absurd decision and willultimately re-appoint the legiti-mate MB, Datuk Seri MohammadNizar Jamaluddin as the chief ex-ecutive of Perak state.

As for the rest of the nation, theywill remember Perak and they willremember this injustice when thetime of reckoning comes.

P RamakrishnanPresident

23 May 2009

Aliran is terribly perturbed by theincreasing role the police is as-suming which is perceived to beundemocratic and very unfair.They have intervened wheneverpeaceful activities such as candle-light vigils are organised by civilsociety groups.

These activities have not threat-ened the security of the nation.Neither have they caused any traf-fic congestion. And yet, partici-pants have been dispersed andarrested in a regrettable manner,causing pain and anguish forconcerned citizens who meanwell for this nation.

Recently, the police have become

so intolerant that they have in-truded with impunity into theharmless individual actions ofMalaysians. According to theTaiping MP Nga Kor Ming, “putup tent cannot, gather cannot,wear black cannot, hold candlescannot, drink teh tarik also can-not.”

Indeed, the police action has onlyaccentuated the political problemand added tremendously to theBarisan Nasional’s headache. Itis unfortunate that the police areviewed negatively and no longercome across as a ‘people-friendly’force.

It is of utmost importance that civilsociety must have some space toarticulate and demonstrate theirgrievances to make known to theauthorities what their complaintsare. In all civilised and civil soci-eties, this democratic space is ac-cessible and even recognised as amatter of right.

This is why we are disturbed thatthe police deployed so much man-power and equipment to disruptthe fast that was scheduled to belaunched today. According to TheMalaysian Insider, “a total of 40policemen, two jeeps, four policecars, two vans and seven truckswere seen in the area”. Mostpeople will view this as a wasteof police resources when the rateof serious crimes is escalating andrequires urgent attention. The po-lice should be tackling this seri-ous problem instead of harassingordinary Malaysians.

It is also unfortunate that peopleare beginning to view the policeas taking sides in the clash ofwills between the BN and thePakatan. People are wondering

whether the BN is putting pres-sure on the police, making it diffi-cult for them to be neutral and toconcentrate on their primary taskof maintaining law and order. Itwould be more than a pity if Ma-laysians become disillusionedwith the police.

The Prime Minister must ensurethat as long as the peace is notbreached and law and order isrespected, the democratic space,which is a fundamental right,must be guaranteed to Malay-sians. The PM should allow harm-less activities, like fasting, to takeplace. The BN leadership musttake note that the political turmoilresulting from the illegal takeoverof the legitimate government of thepeople is unlikely to abate. If any-thing, it will continue to escalateto the detriment of our young na-tion.

The only way to overcome thePerak crisis is to dissolve the PerakState Assembly and to hold freshelections so that the people ofPerak can choose their govern-ment they want to administer theirstate. Anything short of a state-wide re-election is travesty of de-mocracy.


26 May 2009

Justice is becoming a rare com-modity in our courts when judgesof questionable ability sit in judg-ment. This situation raises seriousconcerns regarding the appoint-ment of judges and their elevation

I nvoke j udges ’code of ethics:

I n v e s t i g a t ethese judges

So when has fastingbecome an offence?


to the bench.

In the recent cases involving thePerak crisis, we wonder whetherthe Federal Court judges and theCourt of Appeal judges who heardthese cases were right in ignoringArticle 72(1) of the Federal Con-stitution. We are appalled withtheir judgment which wentagainst the grain of justice.

On what basis did the FederalCourt judges rule that the Speakerof the Perak State Assembly hadno power to suspend certain BNAssembly members? In any case,it was the Rights and PrivilegesCommittee that had suspendedthem – not Sivakumar. That factfell on deaf years.

But the moot point is can thesejudges ignore and discard the pro-visions of the Federal Constitutionin deciding their cases? Aren’tdecisions based on sound reason-ing rooted in precedents and writ-ten law?

In a well-argued article, the formerCourt of Appeal judge N H Chanhas clearly established that theJudges’ Code of Ethics had beenbreached by these judges who hadnot paid any attention to the Fed-eral Constitution.

N H Chan has pointed out thatArticle 72(1) specifically states, “The validity of any proceedingsin the Legislative Assembly of anyState shall not be questioned inany court.” How come this provi-sion did not mean anything tothem?

The words of this provision arewritten in unambiguous termsthat it is not too difficult to under-stand what they mean and imply.

It is crystal clear that thecourts have no businessin getting involved in thismatter.

And yet, the supreme lawof the country, whichshould be the corner-stone of our judicial sys-tem and justice, have beentotally side-stepped andcircumvented to the utterdisgrace of the judiciary.

In the case of the singlejunior Appeal Courtjudge, there was no basisfor him to grant a stay in spite ofthe declaratory order of the HighCourt which was the outcome ofa ‘well considered judgment’ asstated by N H Chan. The stay wasdeemed as absurd according toauthoritative legal circles and thegrounds for the stay have not beenstated or supported by any sen-sible logic.

In all these cases there have beenno written judgment. This is a ri-diculous situation that is not fairto the aggrieved parties, to mem-bers of the public and to academia.Judges simply cannot pronouncejudgments that are not backed bysound arguments, reasoned logic,precedents and written law. Liti-gants have a right to know how aparticular judge arrived at a deci-sion so that the aggrieved partyhas that fundamental right tochallenge that decision. That isthe only way to seek justice.

N H Chan has suggested the useof the Judges’ Code of Ethics 1994.

According to him, “The words ofsection 3(1)(d) (of the Code) are soclear and easy to understand thatwe do not need any court of law

to explain it to us ordinary folk.We know what the words mean.By not administering and apply-ing the law, which in this case isthe supreme law of the land as itstands, the errant judges havebrought discredit to the judiciary– grounds for their removal fromoffice.”

Aliran supports the view thatthese judges should at least be in-vestigated as to whether this Codehas been violated.

Their continued presence on theBench is alarming. What is atstake is justice itself when thesejudges sit in judgment. It wouldbe a travesty of justice if they areallowed to occupy the hallowedpositions on the Bench if theyhave broken the Code or have notdischarged their duties properly.

When justice is not renderedbased on precedents and the Con-stitution, it becomes a costly andfutile attempt turning to the courtsfor justice.


28 May 2009


much history but that meant noth-ing to human avarice. Thank Godit did not take off but the point iswe were even prepared to committhis sacrilege!

Then there was an attempt to shiftthe well-known St Michael’s In-stitution in Ipoh somewhere elsejust because it was in the middleof a fast growing township. But StMichael’s was there long beforeso-called development caught upwith it. Thank God it did not takeplace!

But Bukit Bintang Girls’ School inKuala Lumpur was not that for-tunate. This famous school, whichwas a landmark in the history ofour education, had produced somany brilliant students and lead-ers but that notable achievementdid not spare it. It eventually lostto development and greed. It wasdemolished to make way for com-mercial purposes. Though theschool was shifted elsewhere,they made sure that its history

would not continue. They got ridof that famous name: BBGS. Theydid not even bother to retain theold name of the school to honourits history and contribution to oureducation.

I’m sure there are numerous otherexamples of indifference and sac-rilege.

But the latest example to wipe outhistory and a legacy that goes backnearly 200 years and make wayfor greed and corruption is takingplace in the Pearl of Orient:Penang’s version of High Chap-arral is facing extinction within amatter of weeks.

Much has been written about thehistory of this community that hasbeen occupying this parcel of landwhich has been home to morethan five generations of descen-

dants. Therefore it is unnecessaryto dwell on this.

What I’m interested in is how thisland was acquired by the PenangGovernment Officers Cooperative– Koperasi Pegawai KerajaanPulau Pinang. How was the co-operative able to obtain this par-cel of land below market value?Did the officers who were influ-ential and closely linked to theBarisan Nasional Governmentand Umno just help themselves toit with the blessings of the Penangstate government? After all it wasUmno that was effectively run-ning the government and whowould have dared to question itor oppose whatever that wasdone by the Umno Exco Members?

Did the land actually belong to thePenang state for these officers tograb it on behalf of their coopera-tive?

According to legal circles, thisland was under a trusteeship. Butthis trusteeship was dissolved byan Act of Parliament in 1976.When this took place, we are told,this parcel of land reverted to thefederal government. The owner-ship of this land, it is believed, isstill with the federal government.

It is a mystery why the BN gov-ernment deprived these poorKampung Buah Pala residents oftheir land by passing this Act ofParliament. The BN with its ma-jority simply took over this land –nay, it just robbed them of theirland.

There is no evidence that thePenang state government hadever paid a premium to buy back

How did thePenang govt

acquire the land?

CAN YOU SELL SOMETHING ... Continued from page 40


this land. There is no evidencewhen this land reverted back tothe state of Penang. In all prob-ability, the land is still vested inthe Federal Lands Commissioner.

That being the case, how was thisland transferred to the coopera-tive? There appears to be a fraudu-lent transfer of land which is avery serious matter. Why did theCourt of Appeal and the FederalCourt totally ignore this vital pointwhen the residents turned to thesecourts for justice?

It is significant to note that theHigh Court Judge had ruled thatthe villagers and the residents ofKampong Buah Pala have a claimto this land.

In a well-argued judgment, JusticeO’ Hara had clearly establishedthat there are points to be triedbefore the courts and there are is-sues for the courts to weigh andconsider before arriving at thetruth as to the ownership of theland.

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

“There is no evidence before thiscourt that the land in question hadreverted back to the state underthe operation of the old Article 84.The ownership of the land whenit was purportedly alienated to the2nd defendant - KoperasiPegawai Kerajaan Negeri PulauPinang - is an important issue tobe considered and for that reasonI am not prepared to grant sum-mary judgment as sought by the2nd and 3rd defendants.”

The Court of Appeal totally ig-nored the valid points raised bythe High Court and, without anylegally established basis, ruled infavour of the defendants in settingaside the High Court ruling.

This decision seemed to be a re-peat of Nizar’s case in which theHigh Court in a sound judgmenthad ruled that Nizar was the le-gitimate Menteri Besar of Perak atall material times. But the one-man Appeal Court set aside thisfinding without any written judg-ment. This scandalous situationwas re-enacted in the case of the

Kampung Buah Pala case.

In both cases the Federal Courtwas a total disappointment. In theBuah Pala case, it ruled that theplaintiff had no locus standi. Howcould this be so when the resi-dents of Buah Pala can trace theirancestry to more than five genera-tions!

It is this vital and critical pointthat has to be addressed. Whoseland is it? Does it belong toPenang? If so, what is the evi-dence and where is it?

If “the available evidence seemedto show that the land is still vestedin the Federal Lands Commis-sioner, regardless of whether theCommissioner is aware of thatfact” as contended by the DeputyRegistrar, how could this trans-action have taken place?

Can you sell something that youdon’t own? Or transfer somethingthat you don’t have? That is theonly question that deserves anhonest answer.

A repeat ofthe Nizar case

q

Sugumaran, residents committeeSugumaran, residents committeeSugumaran, residents committeeSugumaran, residents committeeSugumaran, residents committeechairpersonchairpersonchairpersonchairpersonchairperson


he central argument inthis volume of 27 essayson Malaysian politicsand society, is that there

exists a conflict between the BN’sOld Politics which is essentiallyethnic-based and characterizedby money politics, coercive lawsand other restrictions, and NewPolitics which demands moredemocratic participation and so-cial justice, accountability andtransparency, and is more multi-ethnic in orientation. The NGOs,new media, Reformasi and the re-sults of the 2008 general electionsmark the arrival of this New Poli-tics. Between the Old and the Newlies a Politics of Developmentalismwhich also helps to explain whymany people continue to supportthe BN. But developmentalismalso underscores the relativelynon-violent transition to a two-coalition political system in Ma-laysia.

NEW BOOK

Old vs New Politics in MalaysiaOld vs New Politics in MalaysiaOld vs New Politics in MalaysiaOld vs New Politics in MalaysiaOld vs New Politics in MalaysiaState and Society in TransitionState and Society in TransitionState and Society in TransitionState and Society in TransitionState and Society in Transition

TTTTT

Francis Loh Kok Wah is aFrancis Loh Kok Wah is aFrancis Loh Kok Wah is aFrancis Loh Kok Wah is aFrancis Loh Kok Wah is aprofessor of politics inprofessor of politics inprofessor of politics inprofessor of politics inprofessor of politics inUniversiti Sains MalaysiaUniversiti Sains MalaysiaUniversiti Sains MalaysiaUniversiti Sains MalaysiaUniversiti Sains Malaysia(Penang) and secretary of(Penang) and secretary of(Penang) and secretary of(Penang) and secretary of(Penang) and secretary ofAliran. He has publishedAliran. He has publishedAliran. He has publishedAliran. He has publishedAliran. He has publishedseveral books on Malay-several books on Malay-several books on Malay-several books on Malay-several books on Malay-sian politics and writessian politics and writessian politics and writessian politics and writessian politics and writesregularly for Aliranregularly for Aliranregularly for Aliranregularly for Aliranregularly for AliranMonthly where most of theMonthly where most of theMonthly where most of theMonthly where most of theMonthly where most of theessays were first published.essays were first published.essays were first published.essays were first published.essays were first published.

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egative elements - greed,corruption, abuse ofpower and judicial in-difference - have con-

spired to wipe out part ofPenang’s history and destroy itsheritage.

History and heritage are assets ofa nation and they should be pre-served for posterity. All civilisednations take pride in their historyand heritage and accord them therightful place in honouring theseassets.

But we in Malaysia do not attachas much affection and concern forour history and heritage. Therewas a time when we even consid-ered getting rid of the MerdekaStadium to make way for commer-cial projects.

Merdeka Stadium is best remem-bered as the place where our be-loved first Prime Minister, TunkuAbdul Rahman, declared thisnation’s independence. It repre-sents so many memories and so

HERITAGE

The Kg Buah Pala controversy

Can you sell somethingCan you sell somethingCan you sell somethingCan you sell somethingCan you sell somethingtha t you don ’ t otha t you don ’ t otha t you don ’ t otha t you don ’ t otha t you don ’ t own?wn?wn?wn?wn?How could the Penang state govt under the BN sell the landwhen “the available evidence seemed to show that the landis still vested in the Federal Lands Commissioner”?

by P Ramakrishnan

NNNNN

Continued on page 37Continued on page 37Continued on page 37Continued on page 37Continued on page 37

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