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INTAN PUBLIC POLICY INSIGHTS SERIES 2015: ADDRESSING CHALLENGES, REALISING TRANSFORMATION

9 APRIL 2015, INTAN BUKIT KIARA

“UPHOLDING SOVEREIGNTY, RESPECTING DIVERSITY” BY

YBHG. TAN SRI ABDUL GANI PATAIL ATTORNEY GENERAL

Bismillahi Rahmani Rahim.

Assalamualaikum and a Good Morning to all.

YBhg. Dato’ Dr Mazlan Yusoff

Director of Institut Tadbiran Awam Negara (INTAN).

Ladies and gentlemen.

Foremost allow me to record my appreciation to the Institut

Tadbiran Awam Negara for their kind invitation for me to speak in

INTAN’s Public Policy Insights Series 2015: Addressing Challenges,

Realising Transformation. May I also record my appreciation to the

organizing team for the warm welcome and the arrangements made.

When the invitation from INTAN was extended to me, I was

informed that I should share my experience in public office as I am due

to retire this year, centred around a theme of “Upholding Sovereignty,

Respecting Diversity”. It is indeed an honour and my humble privilege to

share my thoughts and experiences on these matters with this

distinguished audience, as limited as they may be.

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INTRODUCTION

When I was appointed to the Judicial and Legal Service in April

1980, life was simple and uncomplicated, relatively speaking. I was a

Deputy Public Prosecutor in Kota Kinabalu where I would continue to

serve until I became Head of the Prosecution Division of the Attorney

General’s Chambers in 1994. I dealt with the facts of cases and

evidence as they were produced to me by the law enforcement

investigating officers. I appeared in court and argued my cases

according to the laws and case authorities, always with the highest

respect for the courts and for my learned opposing counsel. Sovereignty

and diversity then was probably taken for granted. Malaysia was a

nation at peace with its neighbours, prospering economically and gaining

prominence in the global arena for all the right reasons. Sabah, my

home State, was and still is as rich in its ethnic and cultural diversity as

any “rainbow nation” could hope to have. Everyone – the indigenous

tribes and the foreigners who had come long ago to trade, work and find

riches in Sabah - co-existed peacefully.

On my next appointment as Head of the Advisory and International

Division in 1995, I was exposed more to the policies and politics of

Peninsula Malaysia as well as the challenges of upholding Malaysia’s

sovereignty under international law. No less important were

understanding, appreciating and upholding the domestic sovereignty of

the federal Government and the 13 States in Malaysia according to the

constitutional principles, division of Executive and Legislative authority

as well as the social contract enshrined in the Federal Constitution read

together with the Malaysia Agreement.

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Suffice to say that during my tenure as Head of the Advisory and

International Division and later as the Attorney General, I have truly

come to appreciate the importance of understanding our constitutional

history and all the instruments and constitutional reports1 that form the

pillars of our young 57-year old nation. For truly, we cannot assert and

claim our constitutional rights and fulfil our constitutional duties unless

we first understand what they are. And this should not just be on

“hearsay” or on the basis of how certain people choose to understand

and propagate that understanding. It should come from our own study

of these fundamental rights and duties.

James Monroe, the fifth and last US President who was a founding

father of that nation, said that, “It is only when the people become

ignorant and corrupt, when they degenerate into a populace, that they

are incapable of exercising their sovereignty.” Ludwig von Mises also

cautioned that, “Sovereignty must not be used for inflicting harm on

anyone, whether citizen or foreignor.”

Understanding this history has also given me a deep appreciation

of the tolerance and understanding, diplomacy skills, ingenuity,

creativity, sacrifices and deep empathy of our nations’ forefathers and

that early generation of civil servants for the peoples of Malaysia.

1 Report by the Federation of Malaya Constitutional Conference held in London in January and February 1956; Report of the Federation of Malaya Constitutional Commission, 1956-1957 (Reid Commission Report), Constitutional Proposals for the Federation of Malaya (White Paper); Report of the Commission of Enquiry, North Borneo and Sarawak (Cobbold Commission Report) and the Malaysia Report of the Inter-Governmental Committee 1962 (Lord Lansdowne Committee Report).

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This largely anonymous body of civil servants unselfishly and with

no thought of personal gain guided this country from its birth and infancy

through the early tumultuous days. They faced down the communist

insurgency and the Confrontation with Indonesia and the Philippines

over the formation of Malaysia. They rebuilt a devastated country after

the May 1969 racial riots. They acted always with the noble goal of

creating a harmonious multi-racial, multi-cultural and multi-religious

Malaysia - the ideal of “sovereignty in diversity”!

In light of the social and other challenges we are facing today,

perhaps it is timely to reflect on how far we have advanced or regressed

since those heady days of “wine and roses”. How much of that credit or

blame should be attributed to civil servants who are entrusted by the

people to be apolitical and serve all peoples fairly? A former Secretary-

General once wrote an editorial in the newspapers of the days when the

Secretary-Generals were so professional and powerful that no politician

ever attempted to try and influence public administrative policy. For the

civil service, those must certainly have been halcyon days!

It is crucial for the civil service to remain independent and for all

civil servants should carry out their duties apolitically. Loyalty should be

to the Federal Constitution and the nation. That is the sovereign right

and duty of all civil servants. This loyalty should also remain even in

retirement. And while we may look back and recall that things were

done better in the old days, we must remember that times change and

the people we serve also change. Therefore the civil service needs to

adapt and transform itself accordingly. And it is not just about

“amending” things here and there. It may require us to “repeal” the old

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thinking and replace it completely For example, why do operating

expenditures of the civil service keep going up every year? The

numbers of civil servants keep increasing but where is the increased

efficiency or even savings from computerization? The problem is, when

we computerize, we need to bring in IT support personnel. So manpower

is increased here. But do we reduce other personnel? Do we reduce

office space? Do we still keep hardcopies of documents and take up

space?

Ladies and gentlemen,

“UPHOLDING SOVEREIGNTY”

General Thoughts

As I briefly alluded to earlier, there are many aspects to the

concept of sovereignty. We are probably most familiar with territorial

sovereignty because of publicized disputes. But there is also

sovereignty of States within a nation which depends on the construct

and allocation of powers in the federal–State relationship. The current

issues relating to water, illegal logging and deforestation of the highlands

and mangroves, environmental pollution and Hudud are some examples

of issues arising from this dichotomy. There is also sovereignty of

peoples within a nation, as seen in the experiences of the Maori in New

Zealand, the Native Americans and Inuit in the USA and Canada and,

our own Orang Asal and indigenous races.

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Federal – State relationship

With reference to the federal–State relationship, the drafters of the

Federal Constitution realized that problems could arise when the States

came under different political parties. But the root of the problems

actually goes to fundamental principles. It must be recognized that the

delineation of federal matters, State matters and concurrent matters is

expressly prescribed in the Ninth Schedule to the Federal Constitution.

Neither the federal government nor the State governments are supposed

to encroach upon or usurp matters under the other’s jurisdiction. To

circumvent possible problems, the Federal Constitution has provided the

mechanism for the delegation of federal matters to States and vice versa

through Parliament. This should be the proper way to address such

issues, that is through an Act of Parliament.

Instead we have the current conflicts regarding the jurisdiction of

Syariah and civil courts in family and personal law matters. Such

conflicts have arisen specifically because the limits laid out in the

Federal Constitution have not been adhered to. More recently we have

the debate on Hudud in certain States. If the Federal Constitution were

adhered to there should be no confusion or conflict. This is because

crime and criminalization of offences is a federal matter. Under item 1 in

List II (State List), States have legislative authority to “create and punish

offences by persons professing the religion of Islam against precepts of

that religion, except in regard to matters included in the Federal List” “but

States shall not have jurisdiction in respect of offences except in so far

as conferred by federal law”.

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With regard to the acquisition of Malay Reserve Land, according to

the Federal Constitution when Malay Reserve Land is acquired, the

State Government must replace that land with “any other land of a

similar character and of an area not exceeding the area of that land”.2

But this is not being done because there is no respect for the Federal

Constitution.

On the other hand there are State matters that urgently require

federal intervention and inter-State collaboration. This is not intended to

usurp State powers and impinge on State sovereignty. Instead it is to

ensure that issues with transboundary impacts are effectively

addressed. Of foremost concern is the need to protect water resources

be they riverine, catchment areas or groundwater. The country is now

reeling with water shortage problems and it is a federal problem. If this

is not dealt with now, there will be a problem in the future. Water cannot

be seen as the right of the State anymore because the right of the

people is more important because it is the people who make up the

country. At the international level, it is noted that the right to clean water

is now considered part of human rights and it appears that Malaysia is

far behind in addressing the issue. There must be an effort to look this

from a humanity perspective and not merely as a matter of the sovereign

right of the States.

I have previously highlighted the need to protect groundwater

because like oil, it flows without boundaries underground. However

nothing has yet been done about it. In my view, there is probably a need

to have a unitization agreement to ensure the sharing of this resource.

We have also seen the destruction of catchment areas through 2 Article 89(3) Federal Constitution.

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indiscriminate logging and these are matters under State control. It is

noted that when a river flows through two or more States, it is a federal

matter. But what about those that flow within the single State. What

happens if one State abuses the catchment area and the river runs dry.

Does it expect to obtain water from another State?

Any action to curb illegal logging and wildlife trafficking also needs

inter-State cooperation to succeed. In addition the impact of

unregulated coastal and riverine sand mining on coastal erosion and the

destruction of protective mangroves with knock-on effects on marine

fauna and flora and the livelihoods of fishermen need immediate

consideration as well. We should also remember that if the marine

environment is affected, our food source is affected as well, not just the

cost but also the supply.

In the end this is all about values and whether we think we have

the absolute right to do anything we want on our own property without

regard for the consequences on others. Values must be there.

Sovereignty of peoples

For Malaysia, the sovereignty of our indigenous peoples and tribes

is about respect for ancestral lands (includes tanah rayauan and burial

grounds), retention of historical rights to land and other economic rights

(fishing rights in rivers and seas such as the tagal system in Sabah), as

well as preservation of language, culture, Adat and way of life. In the

wider context, it is the right of all Malaysians to preserve and freely

practice – within the ambit of the law - their respective languages,

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cultures and way of life, with due regard to the sensitivities of others in

their community.

Ladies and gentlemen,

Upholding sovereignty in the international arena – general

principles

At the international level it is well recognized that sovereignty is the

birthmark of any independent State. Sovereignty is the crystallization of

a State’s national interests and its best safeguard from external

interference. Sovereignty dictates that the affairs of a country should be

decided by its own people.

Sovereign equality as enshrined in the Charter of the United

Nations also means that no country, regardless of size or economic

power, has the right to impose its will on others, nor can it undermine or

deny other countries sovereignty. Such rhetoric is comforting but any

civil servant who has sat in on negotiations of any international

instrument or issue knows that reality starkly differs.

Allow me then to briefly reflect on sovereignty in the context of

Malaysia’s international relations. This is a matter of increasing

importance as competition for resources increases and the advent of

globalization and technology makes exploitation of vast and previously

unreachable or unprofitable resources possible.

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Ladies and gentlemen,

Malaysia is always considered as the “nice” neighbour. Malaysia

advocates peaceful settlement of disputes and offers itself as an “honest

broker” to assist other countries resolve their disputes. Malaysia often

prefers the diplomatic or political approach when dealing with disputes –

sometimes to the detriment of its own position. If a foreign navy vessel

rams our navy vessel, do we shoot or do we send a protest note or do

we run away? If foreign fishing vessels encroach into our sovereign

waters, do we seize the vessels and tow them to port or do we send a

protest note – or do we see whose boat it is first, a big nation’s or a

small nation’s? If a foreign nation builds a lighthouse or other facility on

our islands do we tear it down, send a protest note or take other action?

What if a foreign nation tears down something we built on our island? If

Malaysia is short-changed on an agreement, do we terminate or

withdraw from the agreement or vehemently protest and then succumb

to returning to the negotiating table? In negotiations, do we firmly and

directly say “No” and mean it?

What is the effect of each of the possible forms of protest or

assertions, be it a diplomatic note or protest note, in asserting and

upholding Malaysia’s sovereignty? When and on what grounds should

the decision be made to terminate bilateral negotiations to resolve a

dispute? When does a dispute merit referral to third party dispute

settlement mechanisms such as arbitration or adjudication? When is

recourse to armed force appropriate? Have we ever considered all this?

We talk about rules of engagement but are we prepared to act? For

example in the incidences in the Sulu-Sulawesi Sea when Indonesia

pushes our boats away.

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Experience shows that there is no “one size fits all” solution for any

international dispute. Many factors need to be considered. Foremost is

to have a full record and grasp of all the factual information as well as an

in-depth understanding of the strengths and weaknesses of each

argument to be made. But the most important factor that needs to be

emphasized is the need to take into account and be guided by the legal

considerations and implications of each option that is being considered

to resolve the dispute. This is because one mis-step or miscalculation

may result in the negotiators “selling” or “giving away” our sovereign

territory or sovereign rights just to achieve the quick, amicable

settlement.

Equally important is that all the relevant parties are kept informed

through internal consultation and coordination processes. This ensures

that the fullest available information and records are collated. Care is

also required that all facts are disclosed before any decision is taken on

any course of action, including referral to a third party mechanism. Last

minute surprises are costly, not just in monetary terms but also to

Malaysia’s good name as we will be accused of suppressing or even

fabricating evidence. Of paramount importance is to consult and obtain

the requisite mandate from the Government before any course of action

is pursued.

Most definitely no agency or Ministry should take it upon itself to

unilaterally negotiate on any dispute of any nature with a foreign State

without collectively agreed parameters and positions on issues. Nor

should any agency or Ministry work in silos when national interest is at

stake.

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External advice from international expert consultants should be

obtained where appropriate. Their credentials and affiliations should also

be properly verified before they are engaged to ensure that there is no

compromise of confidentiality and professionalism. More importantly,

Malaysia should be assured that it is getting the advice it pays for as

these consultants don’t come cheap! Ideally there should be maximum

value for money, with tie-ins for transfer of know-how and related

research technologies, ancillary support services and training.

Headline cases

Allow me next to share with you some lessons learned from the

handling of a few of the interesting cases on sovereignty in recent years.

(1) Somali pirate case

On 20 January 2011 Malaysian navy commandoes thwarted an

attempt by Somali pirates to hijack the MT Bunga Laurel, a Malaysian

International Shipping Corporation (MISC) tanker in the Gulf of Aden.

Malaysia had sent the commandoes on board the Royal Malaysian

Navy’s (RMN) Bunga Mas 5 to carry out escort missions for Malaysian-

registered vessels.

The pirates attacked the vessel after the escort mission was

completed and the MT Bunga Laurel was considered to be in safe

waters. Once alerted, BM5 reacted by dispatching a helicopter to the

vessel and a 14-member team in two RHIB boats to retake the vessel

and rescue the crew. The seven pirates were arrested by the RMN and

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brought back to Malaysia to face justice. Malaysia asserted its extra-

territorial criminal jurisdiction and charged them under the Penal Code

for attacking a Malaysian armed forces vessel. All seven were convicted

and are serving their sentences in a Malaysian prison.

(2) Lahad Datu armed attack and claim by the Sulu Sultanate over Sabah

On 12 February 2013, the nation was shocked by the intrusion into

Kg. Tanduo, Lahad Datu by an armed group claiming to be part of the

“Sulu Sultanate Army”. The group was led by Datu Agbimuddin Kiram

and their stated aim was to reclaim Sabah for the Sultanate. The

Government engaged in early diplomacy to prevent any bloodshed. The

Government even carried out a series of serious negotiations with the

self-proclaimed “Sulu Sultanate Army”. No progress was achieved after

almost a month. On 1 March 2013, 2 members of the Malaysian

security forces were killed in a skirmish with the enemy in Kg. Tanduo

while on 2 March, 6 police officers were killed without mercy in an

ambush in Kampung Simunul, Semporna. This finally moved the

Government to react with armed force.

Aside from those killed in combat, 29 suspects were arrested and

charged for offences under the Penal Code namely, section 121

(Waging or attempting to wage war or abetting the waging of war against

the Yang di-Pertuan Agong, a Ruler or Yang di-Pertua Negeri), section 130E (Recruiting persons to be members of terrorist groups or to

participate in terrorist acts), section 130K (Harbouring persons

committing terrorist acts), section 130K read together with section

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511 (Punishment for attempting to commit offences punishable with

imprisonment), section 130KA (Member of a terrorist group) and

section 130M (Intentional omission to give information relating to

terrorist acts). The special investigative powers, witness protection

measures and trial procedures under the Security Offences (Special Measures) Act 2012 [Act 747] were also invoked.

This case demonstrated two essential elements required to uphold

sovereignty – loyalty to the country and national unity. Undivided

loyalty to King and country and unity allows us to move forward and

makes us stronger collectively. A Japanese proverb says that a single

arrow is easily broken but not ten in a bundle. Ultimately, the task of

upholding Malaysia’s sovereignty does not just lie with our security

forces but on the shoulders of each citizen of this country.

It also needs to be realized that the attack occurred because the

long-running claim to Sabah by the Sulu Sultanate and the Philippines

has yet to be resolved. The Philippines may still bring the matter before

a third party dispute settlement mechanism. Therefore the Government

should make its preparations accordingly.

With this in mind, Malaysian officials must take cognisance of the

Philippines claim over Sabah and exercise caution in meetings,

discussions, and other dealings with the Philippines and the self-

proclaimed Sultanate representatives. Officials should refrain from

making any representations on the matter which may jeopardise

Malaysia’s position in any future case. It is now highly critical that

officials contemporaneously record their discussions and translate these

records into internal minutes.

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(3) The Case of the Sovereignty over Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/Singapore), decision of the ICJ in 2008

The Pulau Batu Puteh case3 was a territorial dispute between

Singapore and Malaysia over several islets or maritime features at the

eastern entrance to the Straits of Singapore, namely Pedra

Branca/Pulau Batu Puteh, Middle Rocks and South Ledge. It arose in

1980 when Malaysia published an official map depicting the island of

Pedra Branca/Pulau Batu Puteh within Malaysia’s territorial waters. In

1993, the dispute expanded to Middle Rocks and South Ledge when

Singapore referred to the maritime features in the context of its claim to

Pedra Branca/Pulau Batu Puteh. On 24 July 2003, Malaysia and

Singapore jointly seized the International Court of Justice (ICJ) of the

dispute concerning sovereignty over the three maritime features.

The Court delivered its Judgment on Friday 23 May 2008. It found

that sovereignty over Pedra Branca/Pulau Batu Puteh belonged to the

Republic of Singapore and that sovereignty over Middle Rocks belonged

to Malaysia. The Court refrained from awarding South Ledge to either

country, ruling that sovereignty over the low-tide elevation belongs to the

State in whose territorial waters it is located.

3 Pedra Branca/Pulau Batu Puteh is a small granite outcrop located 25 nautical miles (46 km; 29 miles) east of Singapore and 7.7 nautical miles (14.3 km; 8.9 miles) south of Johor, Malaysia, where the Singapore Strait meets the South China Sea. There are two maritime features near the island: Middle Rocks, 0.6 nautical miles (1.1 km; 0.69 miles) south of Pedra Branca/Pulau Batu Puteh, which consists of two clusters of small rocks about 250 metres (820 ft) apart; and South Ledge, 2.2 nautical miles (4.1 km; 2.5 mi) south-south-west of Pedra Branca/Pulau Batu Puteh, which is visible only at low tide.

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This case is an example where negotiations between States of more than 10 years had failed to lead to settlement of the dispute. It is

also proof of how important territory is to States regardless of how small

or large the territory may be. In this case, Pulau Batu Putih is actually

only the size of a football field! It also demonstrates that legal arguments are not always supported by the facts. Here Malaysia

should have won on historical facts but due to the emphasis of the court

on contemporary conduct, Malaysia ultimately lost the island.

The case also emphasizes the importance of the presence of a State over the territory or feature that is being claimed in order to

support a claim of sovereignty. According to the ICJ, States must exercise sovereign functions over its territory, no matter how small

or insignificant the territory and no matter how small or insignificant the

act. For example in the Sipadan and Ligitan Case, the issuance of

licences for the collection of bird nests and turtle eggs on the islands

supported Malaysia’s claim to those islands.

The decision also showed that sovereignty over a maritime feature is not established and does not depend on its proximity to

the claimant State. It depends on other factors such as legal title and the

conduct of the claimant State.

The other lessons learned from this case include firstly, the

importance of coordination between government agencies and that

no one agency should work in isolation or act alone. Secondly, officials

handling such cases need to know from the outset what they want the dispute settlement mechanism to decide or order.

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In this case, Malaysia did not ask the ICJ to delimit the area

according to its finding on sovereignty over the three features.

Consequently, 7 years after the ICJ decision, Malaysia and Singapore

are still in the midst of the joint delimitation exercise and are

encountering problems to move ahead. Perhaps the most important

lesson of all is to accept the court’s decision with grace and to refrain from after-the-fact recriminations.

(4) Case Concerning Singapore’s Reclamation in and around the Straits of Johor (Malaysia/Singapore), Settlement Agreement signed in 2005

The Singapore Reclamation case concerned land reclamation by

Singapore in and around the Straits of Johor. Malaysia sought to

resolve the dispute through the United Nations Convention on the Law of

the Sea (UNCLOS) Annex VII arbitral tribunal. However, while the

arbitral tribunal was being established, Singapore sought to resolve the

matter through a negotiated Settlement Agreement.

The lessons learned from this case included that the exercise of sovereignty over ones territory is not always absolute and unlimited. Once activities affect another State, the State becomes

accountable to the affected State for its actions, particularly where the

activities are undertaken in an area or affects an area of shared

importance. In this case, the reclamation works by Singapore were

undertaken in the Straits of Johore and therefore affected Johor.

This case also demonstrates that instituting action may

encourage the other side to offer a negotiated settlement even if

previous attempts to find amicable and mutually acceptable resolution

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failed. Even so, care still needs to be taken to ensure that the final settlement achieved between the parties is considered and

understood in the context of the overall dispute. This is important to prevent unexpected consequences. For Malaysia, the terms of the

Settlement Agreement means that in its own coastal reclamation

activities it must now refrain from acting in an inconsistent manner with

the position and legal arguments taken in this case, particularly if it

involves reclamation activities in the Straits of Johor.

(5) The Railway Land Arbitration (Malaysia/Singapore), decision

of Arbitral Tribunal in 2014

On 9 January 2012, Malaysia and Singapore agreed to submit the

question relating to the Malayan Railway Land in Singapore to arbitration

under the auspices of the Permanent Court of Arbitration.

The issue (the “Submission Question”) arose in relation to the

effect of an agreement concluded between the Parties on 27 November

1990 (the “Points of Agreement on Malayan Railway Land in Singapore”,

or “POA”) as subsequently varied. Under the POA, Malaysia agreed to

return to Singapore lands that it held in Singapore under titles that, for

the most part, restricted the use that Malaysia could make of them to the

operation of a railway that ran through Singapore (the “railway lands”).

In exchange, the POA conferred options on Malaysia. One option

made provision for the vesting of three parcels of the railway lands by

Singapore in a company to be jointly owned by the Parties to be called

M-S Pte Ltd (“M-S”) for the purpose of commercial development.

Malaysia did not exercise that option. Instead it opted for the joint

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company to receive for development some parcels of land reclaimed

from the sea by Singapore.

The award in Malaysia’s favour was that M-S Pte Ltd would not

have been liable to pay the development charge on the Keppel, Kranji

and Woodland parcels if the said parcels had been vested in M-S Pte

Ltd. Further, if M-S Pte Ltd had actually developed the lands in

accordance with the proposed land uses set out in the Annexes to the

POA, each party was to bear its own costs.

This case emphasizes that championing Malaysia’s sovereignty

goes beyond the traditional notions of territorial sovereignty. This

dispute was over a commercial matter (payment of a tax by a company

constituted under Singapore law) in the context of a treaty arrangement

between States. It also demonstrates that a strategic partnership with

knowledgeable and committed partners, close collaboration and team

work are invaluable in order to understand the technical issues involved.

This in turns enables legal issues arising in the dispute to be effectively

and accurately addressed.

However the case also exposed weaknesses in Malaysia’s record keeping system and record taking practices. This lapse had potentially damaging implications to Malaysia’s case when these

shortcomings were presented by Singapore to the arbitral tribunal in

support of its’ legal position. It highlighted the importance of accurate record taking during four-eyed meetings and informal meetings or private telephone conversations. This was something Singapore did

but which Malaysia did not do.

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The importance of documented records and minutes of

discussions and meetings in any dispute cannot be understated. Cases

are won or lost on the existence of such records and on their accuracy.

Hence it is hoped that the lessons learned from the dispute cases cited

will prompt Malaysian officials to be more conscientious in their record

taking and record keeping. You never know when a scribbled note can

be invaluable! The Attorney General’s Chambers also has reason to be

grateful to the diligent officials who made the extra effort to ensure that

full and detailed records were always kept of events in some of the

cases we handled, such as the Pulau Batu Puteh case.

Caution must also always be exercised when making statements to our counterparts from neighbouring States, whether oral

or written. This caution must be exercised at all times and not only when

made in an official or formal capacity or setting. We may think it is

inconsequential conversational “small-talk” in the corridor or over a cup

of tea but that is the statement that will be used in the formal discussion.

A wrong statement made could lose Malaysia territory, or cause

Malaysia to be compelled to act a certain way toward other States. As

the saying goes, “loose lips sink ships”.

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Ladies and gentlemen,

RESPECTING DIVERSITY4

Gautama Buddha is supposed to have said that, “Three things

cannot be long hidden: the sun, the moon and the truth”. On the issue of

diversity we are all familiar with the truism that there is strength in

diversity. W. Scott Thompson also pointed out that “Race exists and we

are all the better for it”.

The Chinese Premier at the conference commemorating the 50th

anniversary of the Five Principles of Peaceful Coexistence held in

Beijing in June 2004 said that the diverse civilizations are a hallmark of

human society and an important driving force behind human progress.

He noted that there are over 6 billion inhabitants living in more than 200

countries and regions who can be broken down into over 2500 ethnic

groups who speak more than 500 different languages. Such diversity is

a legacy of history and will keep on living into the future. Premier Wen

Jiabao also emphasized that, “Instead of harbouring bias against or

deliberately belittling other civilizations, we should uphold the great

thought of peaceful coexistence and give full respect to the diversity of

civilizations.”

This is the real world we live in today. It has become so small. We

have to trade, negotiate and live with each other. And Malaysia is only a

small part of this big world. Just take the population of Kuala Lumpur

4 This part contains excerpts from the Attorney General’s paper first presented at the ILKAP National Law Conference 2014 on 11 November 2014 entitled “Current Challenges in Preserving Social Order and National Harmony – A Critical Note”.

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today. It is not just Chinese, Indians and Malays. There are foreigners

from every part of the world. That is the kind of interaction we have

today. Within Sabah, almost everyone is of some mixed race and now it

is not just mixed between the peoples of Sabah but also mixed with

peoples of other countries. There are even Malays of mixed parentage.

Therefore can we still just talk about “Chinese, Indians and Malays”?

Aside from the fact that this ignores all the other known races in

Malaysia like the various Orang Asli and Orang Asal groups as well as

the other Bumiputera, everyone knows someone of mixed race. So you

have to live on your terms and understand yourselves first. Malaysia is

populated by diverse peoples and we have thrived in our diversity. We

can continue to do so if we follow the right path.

Ladies and gentlemen,

If one traverses the social media these days, it would seem that

Malaysia has lost its appreciation for its own diversity. Worse, it would

appear that we have become an insensitive and intolerant nation. We

seem to have lost our sense of humour. We also seem to have lost our

judgement as to what constitutes humour. Needless to say that in such

an environment, there can be no respect and appreciation of diversity.

Hence it may be timely for some introspection to understand what

makes us Malaysian. What weaves our diverse strands of humanity into

one beating heart of this nation? What fuels our passion for national

unity in the midst of our differences?

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As with other nations, we too have our symbols of national unity. But do we understand and appreciate them? Do we even still remember

what they are as we were once taught in school?

If there is a root cause of our current dilemma in dealing with

diversity in the country, it appears to be a lack of understanding of

everything that is supposed to make us a nation. Such passion for our

nation is supposed to be inculcated from cradle to grave, by parents and

teachers. As Charles de Montesquieu said, “There is no nation so

powerful, as one that obeys its laws not from principals of fear or reason,

but from passion.” If we were such a nation, there truly would not be a

need for the much maligned Sedition Act 1948.

Symbols of national unity

The most important national symbol of all must be the Federal Constitution. It is the supreme law of the land and the corner stone of

our social order and national unity. However, aside from a specialist

group of lawyers and historians, does anyone read its actual provisions,

and each and every one of its provisions? Some seem to read selected

articles of the Federal Constitution and then claim to be lawyers!

The value of the “social contract” elements5 we have inherited

should never be underestimated or undermined. It must be appreciated

that these elements in the Federal Constitution were engineered by the Alliance in consultation with the Malay Rulers as the best solution to protect the interest of the groups concerned. This in particular

includes the trade-off between the granting of citizenship for the 5 Ooi Kee Beng, “The Reluctant Politician: Tun Dr. Ismail and His Time” (2006).

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Chinese and Indian migrants for recognition of the special Malay rights. Similarly the protections for the customary aboriginal rights of the

indigenous peoples consciously entrenched in the Federal Constitution.

In this regard we must also bear in mind the social contract

conditions accorded to Sabah and Sarawak - the guarantees given to those States in the Malaysia Agreement - when they agreed to form

Malaysia with Peninsula Malaysia. Can these guaranteed rights be

thrown out just by using the two-thirds majority rule for constitutional

amendments without regard for the views of the people of Sabah and

Sarawak? This should not be the case because they are contained in

the Malaysia Agreement and are now a basic pillar of the Federal

Constitution.

We should bear in mind that unlike the constitutions of other

countries such as the United States of America, we drafted the Federal

Constitution ourselves with the participation of the Malay Rulers and

people of Malaysia through the various political parties. Our Constitution

thus addressed our issues of concern such as citizenship for the

Chinese and Indian immigrants as well as the preservation of the

traditional Malay rights.

Secondly, let us take that foremost symbol, the national flag. Do

we respect, take pride and understand its’ power to unite our nation? Or

is this something only for the security forces and school children? And

we forget our times and days as school children too.

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Thirdly, let us consider the national anthem – “Negara Ku”. How

many truly understand and appreciate the meaning of those first words

in our national anthem - “Negara Ku, Tanah tumpahnya darah ku”.

Taken literally, it means my country, the place where I am willing to spill

my blood in defending it or the land of my birth. Metaphorically, it means

my country, my Malaysian motherland or homeland. Our security forces

who had to fight in the attacks against Sabah and on the high seas in the

Gulf of Aden proved they were willing to die for their country. Others

make noise but the question is – are they willing to die for our country?

Fourthly, do we understand the importance of the Yang di-Pertuan Agong as the living symbol of our unity. If we did, would we be

so quick to disparage this highest constitutional office?

Last but not least, let us revisit the Rukun Negara (Articles of

Faith of the State6). Do we merely recite or do we actually internalize

the 5 principles which were intended to be the moral compass and key to national harmony and unity? Bear in mind that the Rukun Negara

was specifically crafted for the success and stability of Malaysia’s

multiracial society. Do we epitomize and practice these values which are

supposed to define the national character of the people? Do we realize

that the Declaratory Preamble to the Rukun Negara holds equal

importance to the 5 principles, if not more. To be frank, how many have

read the Preamble?

Perhaps it is worth for us to take a moment to reflect on the

continuing relevance of the Rukun Negara today. The five principles of

the Rukun Negara declare that – 6 Ooi Kee Beng, “The Reluctant Politician – Tun Dr Ismail and His Time” at pg 220.

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“We, the people of Malaysia, pledge our united efforts to attain

these ends, guided by these principles:

• Belief in God

• Loyalty to King and Country

• Supremacy of the Constitution

• Rule of Law

• Good behavior and Morality.” [Emphasis added]

But it is the declaration that sets out what is intended to be achieved

through these principles. The Declaration states:

“DECLARATION OF RUKUN NEGARA[2]

Now therefore, our nation Malaysia, being dedicated:

• to achieving a greater unity for all her peoples:

• to maintaining a democratic way of life;

• to creating a just society in which the wealth of the

nation shall be equitably shared;

• to ensuring a liberal approach to her rich and diverse

cultural traditions; and

• to building a progressive society which shall be oriented to

modern science and technology;”. [Emphasis added]

[2]Official portal of the Department of National Unity and National Integration at http://www.jpnin.gov.my/en/isytihar_krn, downloaded 8 November 2014; Malaysian Coin at http://www.malaysiancoin.com/2014/07/sejarah-dan-maksud-rukun-negara-malaysia.ht... downloaded 8 November 2014.

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In relation to the third aim to be achieved, it is emphasized that it refers

to the “equitable” sharing of wealth and not the “equal” sharing of wealth,

and the difference in meaning should be clear to all.

For those who think that a new law or enhancements to an existing

law will solve all society’s ills, Charles Samford, eminent Australian

ethicist and law professor, propounds that over reliance on the law is

unproductive. This is because law does not change, and cannot

control, human behavior. Personally, I think that it would be a sad day

for Malaysia when it is the law and not your values and common sense

which dictates your actions toward another person based on their

ethnicity.

As we seek to rejuvenate respect and appreciation of our diversity

as a people of Malaysia, it is really up to you to search for understanding

and change your behavior, to teach your children and grandchildren the

important values of respect and tolerance, to teach the future

generations about unity and nation building.

CONCLUSION

Ladies and gentlemen,

Albert Einstein said that, “The highest destiny of the individual is to

serve rather than to rule.” As a civil servant I am sworn to serve the

Government and the people for so long as I am needed. In the course

of my 35-year career in the Judicial and Legal Service, I have tried to

serve my nation to the best of my abilities. The Federal Constitution is

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the bastion of our nation and my Chambers and I will continue to

safeguard it for the generations to come. Our daily job, to uphold the

rule of law and justice and to uphold the sovereignty of our nation at

home and abroad, will continue to be carried out without fear or favour.

But ultimately it will be for each and every Malaysian to stand up and be

counted when it comes to upholding our national sovereignty and

respecting our diversity.

In conclusion, my hope is that the civil service of Malaysia will

always maintain its proud neutrality and serve the nation well. And may

we as the Malaysian civil service always be able to say as Sir Winston

Churchill once did, “Today we may say aloud before an awe-struck

world: “We are still masters of our fate. We are still captains of our

souls.”

Thank you.