Wednesday, 30 November 2011

An Assembly Tale

Malaysia Today
1 December 2011


The scene is a small terrace house, somewhere in Kelana Jaya. Ten year old Mary and her younger brother Timothy approach their father who is sitting in the living room flossing his teeth after a large meal.

“Papa, Timmy and I would like to tell you something”
“Oh, really, both of you want to gather together and say something?”
“Yes, we think it is a very important issue and we would like to express ourselves to the whole family”.
“I see, so you want to assemble peacefully. You are not going to get violent are you?”
“Of course not Papa!”
“Good. Good. Very well, you can’t say I am a wicked and authoritarian father. I am in fact very liberal; much more liberal than other fathers, for example that Mr Hlaing from Myanmar. I am very happy to give you the space to get together with your brother and express yourselves to your little hearts’ content”.
“Oh thank you Papa. You are such a kind and understanding Papa”.
“I know, I am, all my buddies tell me. However, I just have a few teeny tiny conditions”
“What are they Papa”?
“There are some places in the house where you cannot gather. The kitchen is one. It is a very sensitive area where food is being prepared and I don’t want you to get in the way of your mother who is busy cooking there. Also you can’t gather in the dining room because that is where we eat. The living room is off limits due to the fact that the television is there and you would be interrupting the quiet enjoyment of the family by making noise when we are trying to watch TV. The garage is a no go zone. If you go tramping around in there you might jolly well scratch my car and we can’t be having that can we?”
“I suppose not Papa. Is there any where else we can’t gather?”
“Let me think. Of course! You can’t assemble in the toilet”.
“In the toilet? Why not?”
“You know very well that I suffer from incredible bouts of gas and I need the toilet to be free at all times so I can relieve the build up”.
“So, where on earth can we gather”?
“Your bedroom”.
"How can the other family members know what we are complaining about if we are stuck in our bedroom”?
“You silly little thing. If the rest of the family want to hear what you are saying they’ll just have to go to the bedroom isn’t it? Except little Annie. She’s too young and I don’t want her getting confused by what you have to say”
“Are those all your conditions Papa”?
“No, I have one more. If any of the family members complain about what you are saying, then I won’t let you speak”.
“That is not fair. You know that big brother Abe never agrees with us and he is bound to complain. He is your favourite and you always listen to him no matter how stupid his views are”
“Now, now, you are being over emotional. I don’t have any favourites and it is irresponsible for you to say so. See, I let you speak and you say irresponsible things. There are limits to freedom you know”.
“Your limits have no limits papa. This is too much.”
“Alright then, if you are unhappy with my rules you know what you can do.”
“You can go to your room and talk to yourself over there”.

Mary and Timothy trudge unhappily to their bedroom. Suddenly their father calls to them.

“Wait! Wait! Mary, I said you can go to your bedroom. I did not say that you and Timmy can go there together in a procession. When you walk in a group you block up the hallway and that is very bad. There’s a good girl. Now off you go and when you are finished, go make me a cup of tea”.

Sunday, 27 November 2011

Keep it simple and indelible

Brave New World (The Star)
17 November 2011

Why must the use of indelible ink need a constitutional amendment? If you have the right to vote under Article 119 and as long as that right is not taken away from you, there should be no problem.


I HAVE always advocated respect for the Constitution and constitutionalism. I had no idea that the Attorney-General was of the same mindset.
In fact, he is so concerned about ensuring the Constitution is adhered to that he seems to have spotted constitutional issues where there appear to be none at all.
You see, according to him, if we were to use indelible ink during our elections, where those who have voted will be smeared with a bit of ink to ensure they don’t vote again, it would require an amendment to Article 119 of the Constitution.
Dutifully, I whipped out my copy of the Constitution and checked out the said article. Good news, it does exist and furthermore it is about the electorate.
Examining Article 119, I see that it is about who is entitled to vote. Basically you can vote if you are a citizen who is past the age of 21, resident in your constituency (or an absent voter), duly registered, not mad and not a convict.
I read it and I read it again, but I can’t for the life of me see how the use of indelible ink is going to need a constitutional amendment.
In essence, Article 119 is about who can vote. If you have the right to vote under Article 119 and as long as that right is not taken away from you, I don’t see what the problem is.
You can smear my index finger with indelible purple or draw an intricate pattern on my face as a sign that I have voted if that’s what you want, but as long as you don’t stop me from actually voting, there’s nothing unconstitutional here.
I tell you what should be amended though; the need to register to be a voter. Why can’t we just be automatically registered once we have reached the age of 21? It’s not difficult to ascertain a Malaysian citizen who is over 21; they are the ones with the blue identity cards which say their birthday is over 21 years ago. See, simple.
I like simple things. For example, I like the simple pleasure of making a cross on a piece of paper next to the candidate of my choice.
I like that if you can count, you can count the votes.
I like that anybody can check if there is hanky panky in the electoral process because checking little pieces of paper does not require any sort of qualification.
I don’t like complex things like e-voting. It sits uncomfortable with me that my vote is converted into electronic form and then disappears into the ether where who knows what’s being done to it.
All I want is to go with my MyKad to a voting centre, get my piece of unmarked voting paper slip and a pencil, make my choice, get my finger or whatever digit they choose smeared with ink, then leave knowing I have done my civic duty. Simple.
Maybe that is why I can’t see what the AG is getting at, I am far too simple.

Monday, 7 November 2011

Court decision a pleasant surprise

Brave New World (The Star)
3 November 2011

Higher education is not merely about going to the lecture theatre and mugging for your exams. It is about expanding your horizons, taking responsibility for your actions and acting on your convictions.

THE Court of Appeal’s decision on the Universiti Kebangsaan Malaysia (UKM) Four case, which declared in a majority 2-1 decision that Section 15 of the University and University Colleges Act (UUCA) is unconstitutional, was a very pleasant surprise indeed.
The four students from UKM were initially charged by their university for “expressing support for a political party”. This is an offence under Section 15 of the UUCA.
They were accused of this primarily for being present during a by-election campaign in Selangor.
The question before the court was whether Section 15 impinged on the students’ constitutional right of expression.
One of the reasons that the dissenting judge used in his decision to not question the validity of the UUCA was that his lordship was of the opinion that it was not up to the court to question the harshness of the UUCA.
I respectfully disagree, for what is being questioned is not the harshness of the law, but the constitutionality of the law.
The thing about our Constitution is that all the protections they give us usually have a proviso.
The proviso generally being that Parliament can make laws which limit our rights if it is in the inte­rest of public morality, order and national security.
For years and years, our courts have often times simply accepted repressive laws made by Parliament without actually questioning whether these laws are constitutional or not because the Government said that it was necessary for national security or public order or morality.
In effect, there was a tendency to allow the party with a majority in Parliament to do what it wanted.
This is derogating responsibility. It is not enough to simply accept the word of the Government when it says “this law is for national security”.
There should be an examination of it to see whether it really is for national security.
Without that examination, any old law can be made.
There will be no limitation on the lawmakers and what we will end up with is a system of governance where there is no real protection of our rights.
That is why it was so exciting to see the two judges in the UKM Four case clearly stating that any law made has to be scrutinised to ensure that its constitutionality is based not merely on the form of the law but also its substance.
In this particular case, they held that preventing students from expressing support for a political party is in no way a threat to national security, public order or morality.
The decision is made not only by taking a legalistic approach but is also one based on common sen-se.
After all, a person above the age of majority is free to enter into contracts, get married, be the head of a corporation, vote, be Prime Minister, etc, and yet by virtue of being a student they can’t express support for a political party. This does not make any sense.
Furthermore, how can supporting a perfectly legal organisation be considered dangerous?
The stand of the Government as well as the dissenting judge is that the UUCA is there to prevent students from getting involved in politics and thus being distracted from their studies.
This too does not make sense. Having been a student myself and having taught them for 21 years, let me assure you that young people can get distracted from their studies by a million and one things and chances are unless you are some serious political nerd, politics is not going to be on that list.
We might as well ban students from playing online games if we are so concerned about their focus on studying.
Higher Education Minister Datuk Seri Mohamed Khaled Nordin was also reported as saying that if it is considered that a student’s constitutional right of association is more important than his studies, then we can do away with UUCA.
Again, I have to disagree. This argument is far too simplistic.
When we restrict a person’s fundamental freedom, whatever that freedom might be, we are stifling their ability to develop.
Higher education is not merely about going to the lecture theatre and mugging for your exams.
It is about expanding your horizons, taking responsibility for your actions and acting on your convictions.
You can’t do this if you are kept chained by repressive laws.
But it is still too early to rejoice this victory for fundamental liberties in general and academic freedom in particular.
The case might still go to the Federal Court and who knows what their decision will be.
Neither is this case reason to say our judiciary is independent.
What this case does show is that there are individual judges in our courts who understand and appreciate constitutionalism, there are lawyers willing to argue for this principle and there are young men and women in our student body brave enough to stand up for their rights.
There’s still much to be done, but for the moment this is reason enough to cheer.

Don’t send Myanmars back

Brave New World (The Star)
20 October 2011

Among Myanmars detained in Malaysia for immigration related offences are economic migrants as well as political refugees who left their country for fear of persecution and oppression.


FOUR years ago, scores of Myanmar citizens were killed by their government for taking part in non-violent protests which started out as a reaction to a cut in fuel subsidies.
The involvement of a large number of monks, many of whom were also beaten or killed, led this episode in Myanmar’s history to be known as the Saffron Revolution.
During the Saffron Revolution, according to the then Myanmar junta, 1,000 arrests were made (non-governmental sources put the number at many times that), but there were also many who were arrested before 2007 and many more who were arrested after.
The Assistance Association for Political Prisoners (AAPP) Burma estimates that there are currently as many as 2,000 political prisoners in Myanmar.
The AAPP also states that torture is commonplace among these political prisoners.
The people of Myanmar are among the poorest in the world, but their unhappiness is not limited to economic deprivation.
Considering the situation in Myanmar, where any sort of opposition to the authorities – be it in the form of peaceful protests, academic writing, public speaking or even artistic expression – is deemed as dissent and a political threat, it would come as no surprise that people would leave the country out of fear of persecution and oppression.
It is quite clear that human rights violations occur on a large scale in the country. Thus, people leave for reasons not limited to economics.
In this light, it is shocking to read that the Government has agreed in principle to deport Myanmar nationals who are currently detained in Malaysia for immigration-related offences.
It is possible, if not probable, that among those detained are political refugees and not economic mi­­grants.
After all, if you are trying to escape a country due to your political views or ethnic background, necessities such as visas may not be on your to-do list.
The spin on the part of the Government is that Malaysians detained in Myanmar would be returned here, so it’s not simply a deportation exercise but a “swap”.
I would like to know how many Malaysians are actually detained in Myanmar.
I mean what would possess a Malaysian to enter Myanmar illegally? To get a high-paying job because Myanmar is so much more deve­­loped than Malaysia?
Or perhaps it’s a bunch of folk who went to Chiang Mai (Thailand) but overshot a little bit and went too far west?
It would be inhumane to have a blanket arrangement with Myanmar to return those detained here.
We cannot be sure what fate awaits them.
The act of sending people back to a country, which we know as such a harsh and intolerant regime, is simply unethical behaviour.

Right to question hudud law

Brave New World (The Star)
6 October 2011

My problem with religion-based law making, is the idea that it cannot be questioned because it is divine in origin. In a democracy, if we can’t question the laws that affect our lives, then it is not a democracy at all.


POOR Fulham. Despite thoroughly thrashing Tony Fernandes’ Queens Park Rangers 6-0, all the sports headlines were about the other London derby where Tottenham Hotspur edged Arsenal 2-1. I suppose it is all about perception; just what is important and what is not.
As much as I would like to think that the game at White Hart Lane is an indication that the power in North London has shifted to Seven Sisters road, I am ever cautious and am reminded of the saying that a swallow does not a summer make.
Although I suppose in the case of the Spurs-Arsenal rivalry, considering that we have beaten them three times in the last four league clashes, it just may be there is more than one swallow fluttering about.
However, I digress. My earlier point remains and that is the perception of what is important and what is not.
At the moment, there are all sorts of news stories floating about and they point towards one thing, elections.
PAS has once again raised the hudud issue. Frankly, I am not too worried about this matter.
Pakatan Rakyat has stated that they will not go on with hudud unless all the component parties agree.
This seems highly unlikely as DAP will never agree and I am sure there are some voices in Keadilan too who will not be comfortable with hudud.
However, if they do try to introduce it, I will most certainly object.
The reason why I object is encapsulated in Hadi’s (PAS president Datuk Seri Abdul Hadi Awang) statement in the press on the matter (if it was accurately reported) where he said that hudud cannot be questioned.
Whoa there, “cannot be questioned”? I am sorry, if you have personal beliefs that affect only you and you won’t question them, that’s all fine and dandy.
But if you are going to introduce something into the public sphere, something that will affect the lives of the citizens, I don’t care if the source of what you are introducing is divine, it jolly well better be questioned.
And I don’t care if you say I have no degree from Al-Azhar and no goatee to go along with it, I will question any law that any government wants to introduce.
This has been my problem with any religion-based law making, the idea that simply because it is divine in origin means it can’t be questioned. In a democracy, if we can’t question the laws that affect our lives, then it is not a democracy at all.
And then there is poor Mat Sabu; charged with criminal defamation for questioning the heroism of the policemen who fought at Bukit Kepong.
I checked the Penal Code and sure enough, criminal defamation can be committed against the dead.
It’s a bit weird because how far back does this provision extend? I mean in historical matters there will always be different perspectives and differing opinions based on new findings and discoveries.
In case the Government decides to charge me with criminal defamation for questioning the character of one of our early leaders, let me use an American example.
Thomas Jefferson; renaissance man who helped draft the American Constitution and ensured a modern democracy where all men were created equal, or a shameless hypocrite slave owner who fathered numerous children with his female slaves?
Both views are correct and depending on your own take on history the view that will take precedence will differ.
And surely that was what Mat Sabu’s statement was; his take on history.
Was it insensitive, probably, should he be prosecuted for it, I don’t think so.
However, all these issues are really not that important to me. I think they are just the usual sound and fury that come with politicians posturing in the light that elections are coming.
The real important story for now should be the Budget and more importantly the alternative budget that the Pakatan has unveiled.
It is really good to see Pakatan acting like they have a Shadow Cabinet (although they don’t have one really).
We need to see concrete counter proposals from the opposition to not only help us question the Government’s Budget but also to assess the alternatives which a different government could give. This is vital in a mature democracy.
I certainly hope that discussions in the next couple of weeks will be about comparing the two budgets for surely that is more important than a hudud law which is unlikely to be implemented and Mat Sabu’s supposed lack of patriotism.

> Post Script: I don’t think the Fulham game was that important, who cares what happened at Craven Cottage. We beat Arsenal, again!

Testing the limits of reform

Brave New World (The Star)
22 September 2011

Prime Minister Datuk Seri Najib Tun Razak indeed has the country buzzing with his promises of sweeping reforms, but any change to these laws will take at least a year – and that’s practically an infinity in politics.

THERE’S been so much excited quivering during the past week over the Prime Minister’s Malaysia Day speech that I sometimes feel like I’m living in a bowl of jelly. This is not the first time a PM has made the Malaysian public as giddy as schoolgirls at a Justin Bieber concert.
I am old enough to remember former prime minister Tun Dr Mahathir Mohamad’s “Clean, Efficient, Trustworthy” promise upon taking power and how people thought that this was the beginning of a new type of government. One that was not “dirty, incompetent and dishonest”. Of course, after the numerous financial scandals involving billions, that hope went out the window.
Tun Abdullah Badawi’s “work with me not for me” statement also captured the public’s imagination and his promise for greater civil liberties had hardcore opposition supporters voting BN for the first time. It didn’t take too long before tear gas and chemical water cannons washed away the euphoria which greeted the new PM.
Now it is Datuk Seri Najib Tun Razak’s turn, and indeed he has got the country buzzing with his promises of sweeping reforms.
The Internal Security Act (ISA) is to be abolished, and the Printing Presses and Publications Act (PPPA) amended along with a slew of other changes.
I do not believe that I am being overly cynical when I say “this is all well and good but I’ll believe it when I see it”.
My concern is two-fold. First, unless and until we actually see the shape that the amended PPPA takes, and until we can closely scrutinise the two new laws which are supposed to be the replacement for the ISA, I think it is premature to think that we are finally rid of these draconian laws.
From my understanding, under the proposed amended PPPA, a newspaper can still have its licence taken away by the Govern­ment. Is this process going to be easy for the Government and without any recourse to the courts for the paper? If so, then there’s not much change, is there?
The same goes with the two new security laws that are supposed to replace the ISA. If there is still broad discretion to detain without trial then all we have is old wine in a new bottle. I am unconvinced, for example, that the new laws will only be used for terrorism cases.
If the new law is only for terrorists, who is going to define who is a terrorist and who is not? And without a trial, a detention order can still be easily abused – all one needs to do is accuse a person of being a terror threat.
My second concern has to do with the sustainability of the idea within Umno. Let’s not forget, the system of government we have in Malaysia follows the Westminster model, that is to say we don’t vote for our PM directly.
The PM is fundamentally the choice of the party with the majority in Parliament, as opposed to the presidential system where the leader of the nation is chosen directly by the people.
If this idea to abolish the ISA and to make these sweeping systemic changes is primarily from the Prime Minister, how can we be sure that his party will follow through with it if he is no longer PM?
Any change to these laws will take at least a year. A week is a long time in politics, a year is practically an infinity – and anything can happen in such a period.
Putting my concerns aside, I hope that something positive will come from these promises and that these laws will be changed, and the changes will be substantial and meaningful. If it does happen, let us not forget that they happened because the people wanted it to happen.
No matter what the ruling party claims, if it wasn’t for the shock that they had in March 2008, if it wasn’t for the constant call for the repeal of these laws from the public and civil society, we wouldn’t all be quivering as we are now.