Brave New World (The Star)
31 October 2013
National security can be invoked for any number of reasons because it can mean many things to different people.
_________________________________________
AH, national security. It is such a wonderful phrase; two words that has such deep implications and evokes such powerful feelings.
For example, feelings of fear, paranoia and of being under siege. Mention it to me and I envision manly men, biceps bulging as they heft mighty machine guns ready to do battle to defend us from evil invading armies.
But that is just me. Obviously it means other things to other people. It is after all a vague concept.
It is precisely that vagueness which makes it such a useful term. It can be invoked for any number of reasons.
If some people demand the protection of human rights, you can always say “Hey, we would love to do it, but we can’t because, you know… national security”.
It sounds so noble doesn’t it? Sacrificing one’s rights for the greater good. But is that the way it should be? Perhaps in some situations, the answer should be a resounding yes.
In the United Kingdom for example there is a system called the D Notice. This is where in extremely rare cases the government would request the newspapers not to publish certain information which could result in danger whether to the nation or to individuals.
Normally such information would be regarding military matters or regarding highly sensitive installations like nuclear reactors.
The system however is voluntary and newspaper editors can choose to ignore it. By and large however, they do not. In such situations, I am sure that it is felt that national security trumps the newspapers right to expression and the public’s right to know.
But it is too easy to get carried away with this idea of national security and use it to the extent that it becomes a tool not only for the suppression of legitimate rights, but worse still the legitimising of truly unlawful behaviour which should be deemed the true threat to national security.
Let’s look at another example; the American Civil Rights movement of the 1960s.
Now, it can be safe to say that not everybody in the US during this period was in favour of equal rights for all peoples regardless of colour.
It was common during that time to have segregated public facilities. Universities in the Southern States for example were often segregated.
This was until James Meredith, a black ex Air Force serviceman enrolled in the University of Mississippi which up till that point was for whites only.
The Supreme Court had passed a judgment that no public university could practice segregation and the newly elected President Kennedy had made an inaugural speech espousing the values of freedom and equality.
Meredith was going to put the law and the President’s words to the test.
The enrolment of one single student caused such uproar that there were actual riots.
In some people’s views riots are surely a cause of concern and are a matter of national security. What then should be done about it?
There are two possible actions really. You can take the warped and cowardly way out and prevent Meredith from going to the college of his choice or you can stand up to the bigots and defend his right to be treated equally.
Fortunately the American government chose the latter.
(As a side note, the Kennedy administration was not always so fearless.
For example, it took significant international and domestic political pressure before they made a firm policy stand against segregation.
The activities of the Freedom Riders, activist who travelled in the segregated south to ensure that the laws on equality were enforced and who faced extremely violent reactions from racist groups like the Ku Klux Klan and even state law enforcement, were initially frowned upon by government of the time).
My point is this; there will always be extremists, those who will not hesitate to use force, or threaten to use force against those they disagree with; even when their “enemies” are merely living according to their inherent human rights.
It is ridiculous in the extreme to victimise the victims of such fanatical groups even further by restricting their rights in order to appease the extremists.
In effect what this means is that extremism is not seen as the threat to national security, which it is, but instead in some twisted way human right is seen as the threat to national security.
This is ridiculous not only in its patently absurd logic, but also because it sets precedence where those who advocate violence, the very ones who should be shunned and pushed to the fringes where they belong, can effectively hold a country to ransom.
Wednesday, 30 October 2013
Wednesday, 23 October 2013
Transformation plan still born
Sin Chew Jit Poh
22 October 2013
In the last few weeks, I have been asked to comment on the recent flurry of political party elections and meetings. Generally I would politely decline. This is because internal political party affairs do not interest me.
Politics in this country is frustrating enough as politicians, particularly from the ruling parties, prefer to avoid fundamental agendas such as corruption, health, governance, rule of law, economic growth and education. Instead the political agenda would be usually something emotive like religion and race; non-issues which only get prominence because politicians force them into public discourse.
If there is so little intellectual content in the political arena between two competing coalitions, imagine how banal internal party politics are. A cursory examination of the various party elections shows me to be correct. So what if person X becomes vice president of UMNO. He is just the same as his opponent because I do not see any differences between the candidates based on ideology.
However, it will be folly to completely dismiss the UMNO elections. They do show us something interesting. And that is, no matter how much he may believe in it, the Prime Minister’s transformation plan is doomed. The UMNO line up is conservative in the extreme (I am trying to use polite words here). Saifuddin Abdullah, the only UMNO politician who has consistently fought for a more progressive approach to governance has been pushed out of the party leadership and what is left are characters who have shown a dangerously regressive attitude towards governance and democracy.
As it is the government gives with one hand and then takes away with another. They promised that they would get rid of the ISA and they did. But they replaced it with the SOSMA which although slightly better, is still open for abuse. They take away detention without trial under the Emergency Ordinance, but now have replaced it with an amendment to the Penal Code which allows for the same thing.
And don’t believe the argument that this kind of law is only used for “criminals” and not “political opponents”. When have they ever detained dissenters on the grounds that they are “political opponents”? They will make things up, usually linking their enemies to some sort of threat or crime. When Hishamuddin Rais and Tian Chua were detained in the early 2000s, they were accused (wrongly) of planning to use firearms. When there is no substantive review by the courts, what is to stop the police and government from falsely accusing their enemies of crimes and then using the laws they have to lock them up?
And now, during the time of writing, there is debate in Parliament to amend the Penal Code again and make it an offence for civil servants to “leak” information. The maximum punishment is one million ringgit. Is this to protect sensitive information or is it to make hard, if not impossible for whistle blowers to expose wrong doings? And I gather there are proposed amendments to the law to make it a crime to fly flags the government does not like.
Looking at the UMNO line up (and that party is the backbone of the current government), looking at the laws passed and proposed, it is clear that we cannot be looking forward to any sort of progressive developments in this country in the context of human rights, rule of law and democracy. Instead we are regressing; which also means that all of Najib Razak’s talk and plans for transforming this nation is still born.
Wednesday, 16 October 2013
Compassion withers as trade steps in
Brave New World (The Star)
16 October 2013
_________________________________
With the Trans Pacific Partnership Agreement looming, I thought it might be good to look back a bit at the history of free trade and the laissez faire system.
In the 19th century, Britain was firmly in the grips of the free trade ideology.
It had been a source of great wealth in the 18th century and by the Victorian age it was thought that the future of growth and development following this dogma was endless, especially with the advent of the industrial revolution.
To a large extent, this optimistic vision of the world was proven to be correct. Britain flourished like never before and became a true world power.
There was of course a dark side to this development. Colonialism which initially started with the philosophical foundations of raising foreign and backward countries to the point that they were “civilised” enough to govern themselves and be part of a global trade system (as paternalistic and condescending as it was) was replaced by an even more damaging philosophy which saw colonialism as little more than an economic endeavour.
Imperialism, whether grounded in lofty (if misguided) ideals or economic pragmatism, left deep scars borne of subjugation, the loss of dignity and dangerously false scientific premise justifying the necessity to rule over “lesser” races. Scars which are still sore in some parts of the world today.
Closer to home, industrial Britain in Victorian times saw great misery and exploitation suffered in the name of progress.
Poverty, disease, child labour and social inequality reached staggering levels.
However, what I wish to discuss here are not the effects of colonialism or unhindered capitalism. Instead, I wish to point out the dangers of being too enamoured with the idea of free trade to the point that basic human values of compassion are forgotten.
And there are two examples of 19th century social tragedy of tremendous scale with which to illustrate this.
I use the word tragedy here in its true literary sense, for both these events could have been avoided if not for stupendously poor decision making.
In the mid-19th century there was a famine in Ireland. Peasants grew potatoes and little else. It was monoculture on a grand scale. So when a disease struck the potato crop, effectively destroying everything, there was a nationwide famine.
People suffering from starvation was a given, but the other effects of the failed crop was homelessness due to evictions, disease from malnutrition and abject living conditions, and mass emigration.
It is estimated that a million people died due to the famine.
Approximately the same number of people died in India in 1896/1897. This was also due to a famine. This time the cause of the crop failure was not disease but the monsoon rains which failed to come.
It would be inaccurate to say that nothing was done to help the starving. There were governmental measures taken and charity drives, in both these places.
However, they were sorely lacking and in some cases poorly planned and implemented. However, one of the things that struck me the most was the fact that in both Ireland and India at the time of the famines, there was a food surplus.
Unfortunately, the grain was earmarked for export.
The reason why this surplus was not directed to the starving was ideological. It was thought that the free market would correct the imbalance of food distribution by itself.
And the all-prevailing philosophy of free trade was of such importance that exports must not in any circumstances be stopped.
It seems unthinkable that the Victorian leaders of Britain could think in that way let alone make their decisions at the cost of millions of lives based on the belief that trade was more important than people, but that is what happened.
Could such a thing happen today? Well, perhaps famine of such a scale is unlikely in this country.
But it is possible that free trade could lead to other social tragedies. It is imperative then that the promise of wealth which the free trade proponents espouse with such convincing rhetoric not blind decision makers to the necessity to think of all possible outcomes from such a philosophy.
It is necessary for them to not forget their humanity.
16 October 2013
_________________________________
With the Trans Pacific Partnership Agreement looming, I thought it might be good to look back a bit at the history of free trade and the laissez faire system.
In the 19th century, Britain was firmly in the grips of the free trade ideology.
It had been a source of great wealth in the 18th century and by the Victorian age it was thought that the future of growth and development following this dogma was endless, especially with the advent of the industrial revolution.
To a large extent, this optimistic vision of the world was proven to be correct. Britain flourished like never before and became a true world power.
There was of course a dark side to this development. Colonialism which initially started with the philosophical foundations of raising foreign and backward countries to the point that they were “civilised” enough to govern themselves and be part of a global trade system (as paternalistic and condescending as it was) was replaced by an even more damaging philosophy which saw colonialism as little more than an economic endeavour.
Imperialism, whether grounded in lofty (if misguided) ideals or economic pragmatism, left deep scars borne of subjugation, the loss of dignity and dangerously false scientific premise justifying the necessity to rule over “lesser” races. Scars which are still sore in some parts of the world today.
Closer to home, industrial Britain in Victorian times saw great misery and exploitation suffered in the name of progress.
Poverty, disease, child labour and social inequality reached staggering levels.
However, what I wish to discuss here are not the effects of colonialism or unhindered capitalism. Instead, I wish to point out the dangers of being too enamoured with the idea of free trade to the point that basic human values of compassion are forgotten.
And there are two examples of 19th century social tragedy of tremendous scale with which to illustrate this.
I use the word tragedy here in its true literary sense, for both these events could have been avoided if not for stupendously poor decision making.
In the mid-19th century there was a famine in Ireland. Peasants grew potatoes and little else. It was monoculture on a grand scale. So when a disease struck the potato crop, effectively destroying everything, there was a nationwide famine.
People suffering from starvation was a given, but the other effects of the failed crop was homelessness due to evictions, disease from malnutrition and abject living conditions, and mass emigration.
It is estimated that a million people died due to the famine.
Approximately the same number of people died in India in 1896/1897. This was also due to a famine. This time the cause of the crop failure was not disease but the monsoon rains which failed to come.
It would be inaccurate to say that nothing was done to help the starving. There were governmental measures taken and charity drives, in both these places.
However, they were sorely lacking and in some cases poorly planned and implemented. However, one of the things that struck me the most was the fact that in both Ireland and India at the time of the famines, there was a food surplus.
Unfortunately, the grain was earmarked for export.
The reason why this surplus was not directed to the starving was ideological. It was thought that the free market would correct the imbalance of food distribution by itself.
And the all-prevailing philosophy of free trade was of such importance that exports must not in any circumstances be stopped.
It seems unthinkable that the Victorian leaders of Britain could think in that way let alone make their decisions at the cost of millions of lives based on the belief that trade was more important than people, but that is what happened.
Could such a thing happen today? Well, perhaps famine of such a scale is unlikely in this country.
But it is possible that free trade could lead to other social tragedies. It is imperative then that the promise of wealth which the free trade proponents espouse with such convincing rhetoric not blind decision makers to the necessity to think of all possible outcomes from such a philosophy.
It is necessary for them to not forget their humanity.
One day in Malaysia’s future - Azmi Sharom
The Malaysian Insider
15 October 2013
http://www.themalaysianinsider.com/sideviews/article/one-day-in-malaysias-future-azmi-sharom
Good Evening. It is October the 16th 2020 and this is the eight o'clock news. This programme was pre-recorded and has received the approval of the Ministry of Moral Values and Censorship.
We begin tonight's newscast with a dramatic shooting on the Super Highway Link Road. Police gunned down five men in their car when they were stopped at a routine road block. Our roving reporter was granted an interview with the Chief of Police.
"Chief of Police may we respectfully and humbly ask, what happened in the lead up to the shootout"?
"Thank you for keeping the nation safe Sir. May I also ask what made you think that these men were gangsters'?
"We had evidence that they were gangsters".
"Thank you again Chief of Police. We are fortunate to be protected by you. Now back to the studio".
Next on the news; the Director General of the Department of Governmental Logistics left the court a happy man today as he was acquitted of all charges of corruption. Viewers might remember that in the year 2018 it was exposed by the Auditor General that the Department of Governmental Logistics had purchased three airplanes for the use of the Prime Minister and her entourage.
The cost of the aeroplanes was fifteen million US Dollars each. Upon delivery it was discovered that the planes did not have any engines. It was uncovered that engines will cost a further two hundred million US dollars per plane, with one hundred million being the commission of the agent that brought the buyer and seller together.
The Department paid this sum and the planes were delivered. Unfortunately, the engines were of the wrong specifications and although the planes can move along the runway, they are not able to take off.
During the case the Director General's legal representative invoked the Impunity Act 2015, in particular section twenty, also known as the stupidity clause. According to this clause, any element of stupidity in a government officer will excuse him or her from any accusation of corruption.
The court took three and a half minutes to come to judgment holding that section twenty applied and the Director General was free to go.
When asked for a comment, the Director General had this to say: "I am very, very, very, very, joy. Justice has been thrown to me. The court said I am stupid and it is very, very, very, very, true that I am stupid.”
Now it is time for the weather report. The haze will be of moderate levels tomorrow with the Air Pollution Index reaching only two hundred and seventy. It looks like tomorrow will be a good day for a picnic folks.
Finally we have received the latest list of banned words from the Ministry of Sensitivity. Starting from October the 20th the following words can't be used: dog, pig, swine, puppy, boar and ham. It has been deemed by the Ministry of Sensitivities that these words are offensive and will harm the sensitivity of people.
Anyone caught speaking, writing or reading these words will face imprisonment up to three years and a fine of up to eighty per cent of their property.
And that has been the news for today, the 16th of October 2020. Be proud of our country for we have been declared amongst the top ten percentile of the International List of the Best Failed States.
Please remember to sing the national anthem before going to bed. Good night.
15 October 2013
http://www.themalaysianinsider.com/sideviews/article/one-day-in-malaysias-future-azmi-sharom
Good Evening. It is October the 16th 2020 and this is the eight o'clock news. This programme was pre-recorded and has received the approval of the Ministry of Moral Values and Censorship.
We begin tonight's newscast with a dramatic shooting on the Super Highway Link Road. Police gunned down five men in their car when they were stopped at a routine road block. Our roving reporter was granted an interview with the Chief of Police.
"Chief of Police may we respectfully and humbly ask, what happened in the lead up to the shootout"?
"Yes you may. At approximately 5.45 pm our officers saw a car approach the roadblock. The five men in the car looked like gangsters so we shot them".
"We had evidence that they were gangsters".
"Thank you again Chief of Police. We are fortunate to be protected by you. Now back to the studio".
Next on the news; the Director General of the Department of Governmental Logistics left the court a happy man today as he was acquitted of all charges of corruption. Viewers might remember that in the year 2018 it was exposed by the Auditor General that the Department of Governmental Logistics had purchased three airplanes for the use of the Prime Minister and her entourage.
The cost of the aeroplanes was fifteen million US Dollars each. Upon delivery it was discovered that the planes did not have any engines. It was uncovered that engines will cost a further two hundred million US dollars per plane, with one hundred million being the commission of the agent that brought the buyer and seller together.
The Department paid this sum and the planes were delivered. Unfortunately, the engines were of the wrong specifications and although the planes can move along the runway, they are not able to take off.
During the case the Director General's legal representative invoked the Impunity Act 2015, in particular section twenty, also known as the stupidity clause. According to this clause, any element of stupidity in a government officer will excuse him or her from any accusation of corruption.
The court took three and a half minutes to come to judgment holding that section twenty applied and the Director General was free to go.
When asked for a comment, the Director General had this to say: "I am very, very, very, very, joy. Justice has been thrown to me. The court said I am stupid and it is very, very, very, very, true that I am stupid.”
Now it is time for the weather report. The haze will be of moderate levels tomorrow with the Air Pollution Index reaching only two hundred and seventy. It looks like tomorrow will be a good day for a picnic folks.
Finally we have received the latest list of banned words from the Ministry of Sensitivity. Starting from October the 20th the following words can't be used: dog, pig, swine, puppy, boar and ham. It has been deemed by the Ministry of Sensitivities that these words are offensive and will harm the sensitivity of people.
Anyone caught speaking, writing or reading these words will face imprisonment up to three years and a fine of up to eighty per cent of their property.
And that has been the news for today, the 16th of October 2020. Be proud of our country for we have been declared amongst the top ten percentile of the International List of the Best Failed States.
Please remember to sing the national anthem before going to bed. Good night.
Thursday, 10 October 2013
Bad Civil Servants, Bad Ministers and Impugnity
Sin Chew Jit Poh
8 October 2013
________________________
The recent behaviour of Zahid Hamidi the Home Minister has been the subject of a lot of discussion, much of it negative. This is understandable of course. His refusal to face hard questioning on the police losing weapons; his crude bullying of a journalist; his supposed support of a group officially declared a gangster organisation; and his supposed threatening to shut down any newspapers that report what he said, this is really behaviour unbecoming for a minister.
My initially thought was that this behaviour is not at all surprising, coming as it does from a person who in the past has shown the same bullying tendencies. With the UMNO general assembly looming, it is to be expected that he will up the ante with his macho man act. It is after all what the UMNO faithful like. The rule of law is not something that they have shown any understanding of and when the Home Minister says things like the police don’t need to give a warning before shooting someone they think is a criminal, I imagine it warms the cockles of hard core UMNO members.
I did not really want to write about the ridiculous statements that Zahid Hamidi has been making. I believed that it was simply a typical action on his part, with just that bit of extra belligerence thrown in to play up to his supporters. In other words, it was merely an unsophisticated politician playing unsophisticated politics. I thought there are more important things to talk about like the Auditor General’s shocking (but sadly, once more, not surprising) report exposing the millions of ringgit lost by government departments which happened one would think through at the best, sheer incompetence and at the worse, rampant corruption. Then it occurred to me that both these things are related. Allow me to explain the connection.
The wastefulness of the government has been soundly criticised and many suggestions have been made for ways with which to avoid it in the future. Punishing the civil servants who have made such poor decisions is one. Transparency in the system is another (for example by making all purchases and expenditure available on a department’s website). I even heard an ingenious suggestion to check the tax returns of companies who have made over priced sales to see if such transactions were declared. If not, then there is not only tax evasion which can be punished but also evidence of possible corruption.
All these suggestions are good, but I am wondering what the root cause of this wastefulness is. We can point to the loss of integrity amongst the civil service. Perhaps this is the reason, a loss of moral fibre in the ranks of the servants of the people.
If this is so, then why did it happen? In the civil service as it is anywhere, there are good people and bad people. Good people, will, by and large do the right thing regardless of the temptations and bad people will always try to bend and break the rules for their own good. A solid and transparent system could make it harder for them to do so, and it is obvious that such a system is not in place here in this country. Of if there is one, it is not being implemented properly.
However, I would suggest there is an even deeper problem; one that cannot be solved by a systemic change. It seems to me that there is a culture in this country which is like a silent disease. It pervades governance and the results can be seen in the Auditor General’s report and the behaviour of the Home Minister.
This is the culture of non-accountability. Those with power act with the kind of carelessness or even possibly corruption with what appears to be impunity. And why shouldn’t they when their actions do not appear to bring with it any repercussions. How many people have been punished due to the Auditor General’s last report which also exposed gross wastefulness?
But even without such punishment, don’t civil servants have to answer to their own conscience? Isn’t there a sense of shame when using your power in such a poor manner? Perhaps at one time there was that culture of integrity.
But how can such a culture survive when you see your political masters like Zahid Hamidi getting away with such terribly wrong behaviour and statements. If the political masters are not accountable for what they do, then is it any surprise that the servants feel the same kind of invulnerability?
Tuesday, 8 October 2013
Policies and the Constitution
Brave New World (The Star)
2 October 2013
A case can be made for policies, and not just laws, to be subject to constitutional requirements. An examination of the new Bumiputra Economic Empowerment Agenda gives an example of the grounds by which policies can be viewed as contravening the Constitution.
____________________________________
LET’S talk about the new Bumiputra Economic Empowerment Agenda (BEEA). From my understanding of the BEEA, it is a policy where the Government will actively direct business opportunities to bumiputra interests as well as a host of other endeavours, all with the purpose of boosting bumiputra economic presence.
I do not want to discuss the economic pros and cons of this new policy; I will leave that to the economists. Instead, I wish to examine this from the viewpoint of the Constitution. Specifically, I want to discuss if this policy can be deemed to be constitutional.
Before we begin, I wish to state here that I am in no way an economic liberal. I believe very strongly in affirmative action.
However, I believe that such affirmative action has to be properly justified, namely that it is designed to help those who are in need the most, specifically the poorer sections of a community.
Furthermore, any such action must be reviewable in an open and democratic manner in order to ensure that it is reaching its objective and that it is not abused nor implemented in such a way as to cause too great an imbalance to the principle of equality.
These basic guidelines are necessary because affirmative action is a type of policy which undoubtedly goes against the basic ideals of equality.
If we take equality as an ideal, then any deviation from it has to be done most carefully and for jolly good reasons.
Incidentally, I did not pluck these principles from out of my ear; they are found in a decision of the International Court of Justice in what is known as the Belgian Linguistic case.
Now, I am absolutely convinced that the founding fathers of this country understood and appreciated the ideal of equality.
They also understood the reality of Malaya in 1957, which is to say there was a massive economic divide in the country and that the majority of the populace, the Malays, were miles behind in terms of economic development.
It was unfortunate, but necessary therefore to take measures to correct that imbalance, although it was not something that was to be done in a blasé or light-hearted way.
In fact, the Sultans at the time stated in their comments to the Reid Commission that ultimately they envisaged a time when race did not enter the equation for governance.
This being the case, there was a delicate balancing act to be done and this balancing act can be found in the way the Constitution was drafted.
Firstly, the principle of Equality is enshrined in Article 8.
However, Article 8 also notes that there can be unequal treatment in the country, but, and this is a big but, such unequal treatment has to be specifically allowed for by the Consti-tution.
Don’t take my word for it; here is that provision in full: “Except as expressly authorised by this Constitution, there shall be no discrimination against citizens on the grounds only of religion, race, descent, place of birth or gender in any law or in the appointment to any office or employments under a public authority or in the administration of any law relating to the acquisition, holding or disposition of property or the establishment or carrying of any trade, business, profession, vocation or employment.”
And there is plenty of unequal treatment “expressly allowed by this Constitution”.
They include things like the treatment of the orang asli, the holding of positions in religious institutions, personal law, membership of the Malay Regiment, and so on and so forth.
However, we are not interested in that here.
We want to see what it says about treating people unequally in economic terms.
For that we have to look at Article 153, which says there could be reserved for Malays and natives of Sabah and Sarawak a reasonable portion of permits and licences for the operation of trade or business as required by federal law.
Permits and licences: is that what the BEEA is all about?
If it is not, then surely such unequal treatment does not fall under the exception provided for in the Constitution, which says that breaching Article 8 can only happen if it is “expressly allowed by this Constitution”.
The next question that arises is the nature of the BEEA. It is a policy and not a law.
An argument has been made therefore that policies are not subject to the Constitution.
Well, if that is the case then if we have an irresponsible government, we may very well find ourselves with all sorts of strange policies which cannot be challenged on constitutional grounds.
A government policy is something which the Executive has the power to create and enforce.
It is something which can affect the lives of the citizens. One of the purposes of having a Constitution is to check the power of the Executive so that it will not abuse that power.
It makes no sense whatsoever if they can flout the Constitution with the excuse that they are making policy, not law.
If that is the case, why have the Constitution at all since it won’t be able to protect us against policies, only laws?
For example, in August, an American court held that the policy of New York police to racially profile people when conducting stop-and-frisk exercises was unconstitutional.
This shows that challenging executive power on constitutional grounds is not limited only to laws but also policy. As it should be.
2 October 2013
A case can be made for policies, and not just laws, to be subject to constitutional requirements. An examination of the new Bumiputra Economic Empowerment Agenda gives an example of the grounds by which policies can be viewed as contravening the Constitution.
____________________________________
LET’S talk about the new Bumiputra Economic Empowerment Agenda (BEEA). From my understanding of the BEEA, it is a policy where the Government will actively direct business opportunities to bumiputra interests as well as a host of other endeavours, all with the purpose of boosting bumiputra economic presence.
I do not want to discuss the economic pros and cons of this new policy; I will leave that to the economists. Instead, I wish to examine this from the viewpoint of the Constitution. Specifically, I want to discuss if this policy can be deemed to be constitutional.
Before we begin, I wish to state here that I am in no way an economic liberal. I believe very strongly in affirmative action.
However, I believe that such affirmative action has to be properly justified, namely that it is designed to help those who are in need the most, specifically the poorer sections of a community.
Furthermore, any such action must be reviewable in an open and democratic manner in order to ensure that it is reaching its objective and that it is not abused nor implemented in such a way as to cause too great an imbalance to the principle of equality.
These basic guidelines are necessary because affirmative action is a type of policy which undoubtedly goes against the basic ideals of equality.
If we take equality as an ideal, then any deviation from it has to be done most carefully and for jolly good reasons.
Incidentally, I did not pluck these principles from out of my ear; they are found in a decision of the International Court of Justice in what is known as the Belgian Linguistic case.
Now, I am absolutely convinced that the founding fathers of this country understood and appreciated the ideal of equality.
They also understood the reality of Malaya in 1957, which is to say there was a massive economic divide in the country and that the majority of the populace, the Malays, were miles behind in terms of economic development.
It was unfortunate, but necessary therefore to take measures to correct that imbalance, although it was not something that was to be done in a blasé or light-hearted way.
In fact, the Sultans at the time stated in their comments to the Reid Commission that ultimately they envisaged a time when race did not enter the equation for governance.
This being the case, there was a delicate balancing act to be done and this balancing act can be found in the way the Constitution was drafted.
Firstly, the principle of Equality is enshrined in Article 8.
However, Article 8 also notes that there can be unequal treatment in the country, but, and this is a big but, such unequal treatment has to be specifically allowed for by the Consti-tution.
Don’t take my word for it; here is that provision in full: “Except as expressly authorised by this Constitution, there shall be no discrimination against citizens on the grounds only of religion, race, descent, place of birth or gender in any law or in the appointment to any office or employments under a public authority or in the administration of any law relating to the acquisition, holding or disposition of property or the establishment or carrying of any trade, business, profession, vocation or employment.”
And there is plenty of unequal treatment “expressly allowed by this Constitution”.
They include things like the treatment of the orang asli, the holding of positions in religious institutions, personal law, membership of the Malay Regiment, and so on and so forth.
However, we are not interested in that here.
We want to see what it says about treating people unequally in economic terms.
For that we have to look at Article 153, which says there could be reserved for Malays and natives of Sabah and Sarawak a reasonable portion of permits and licences for the operation of trade or business as required by federal law.
Permits and licences: is that what the BEEA is all about?
If it is not, then surely such unequal treatment does not fall under the exception provided for in the Constitution, which says that breaching Article 8 can only happen if it is “expressly allowed by this Constitution”.
The next question that arises is the nature of the BEEA. It is a policy and not a law.
An argument has been made therefore that policies are not subject to the Constitution.
Well, if that is the case then if we have an irresponsible government, we may very well find ourselves with all sorts of strange policies which cannot be challenged on constitutional grounds.
A government policy is something which the Executive has the power to create and enforce.
It is something which can affect the lives of the citizens. One of the purposes of having a Constitution is to check the power of the Executive so that it will not abuse that power.
It makes no sense whatsoever if they can flout the Constitution with the excuse that they are making policy, not law.
If that is the case, why have the Constitution at all since it won’t be able to protect us against policies, only laws?
For example, in August, an American court held that the policy of New York police to racially profile people when conducting stop-and-frisk exercises was unconstitutional.
This shows that challenging executive power on constitutional grounds is not limited only to laws but also policy. As it should be.
History is not Black and White
Sin Chew Jit Poh
30 September 2013
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Nothing is black and white; except maybe the colours black and white. Even then you have all sorts of variations. Black is not just black; there is midnight black, satin black and all sorts of other blacks. Just as you have orchid white, apple white and other variations that get interior designers excited.
History too is not black and white. There are always shades of grey and even when something is clear and undisputed, there could still be subtle differences in interpretation. If this is the case, then why is it that in this country, history is viewed in such a simplistic manner?
I am thinking about all this palaver regarding Chin Peng’s ashes. The government is portraying him as a villain and nothing else. And this world view means that he has absolutely no claim for compassion, even in death.
Now, a cursory look at history will show that things are surely not that simple. It cannot be denied that the Malayan Communist Party (MCP) and the Malayan Peoples Anti- Japanese (MPAJA) were the two main indigenous armed resistance to the Japanese. In that sense they fought, risked life and limb to defend this land (we were not really a united “nation” at the time) from an occupying force. Chin Peng belonged to both these bodies and later was to head the MCP.
And when the war was over the MCP turned its sights on the British. Meaning that they were then an anti-colonial movement. And this during a time when the elite of the nation had not yet to begin their push for independence.
If we draw the line of history up to this point, then one could very well say that the MCP were freedom fighters. However, as any school child could tell you, once independence was granted, the MCP kept on fighting and they without a doubt were the killers of many Malayan and later Malaysian civilians and members of the armed forces.
This of course makes their claim to be freedom fighters ring rather hollow. Yet, even here there are grey areas. I do not for one second condone the acts of the MCP, especially in the post-independence period, but let us not forget that the ruling elite may also have had a role to play in this.
The famous point in history here are the Baling talks between the then indigenous leaders of Malaya (the talks were held when we were still under British rule) led by Tunku Abdul Rahman and the MCP, headed by Chin Peng.
The talks were little more than an ultimatum on the part of the Malayan government in waiting. They were not interested in listening to the propositions put forward by the communists; it was their way or no way. And their way, fundamentally did not allow for the MCP to be a legitimate political entity that could take part in the democratic process. In other words the road with which the MCP could lay down their arms and then go ahead to push their ideology via peaceful means was shut on them.
Again, I do not wish to make judgement on the rights and wrongs of this decision made by Tunku and company. It could be that they felt that the MCP had done so much damage that it was impossible to give them any sort of legal recognition. The best they could offer was an amnesty and a period of controlled movement for members of the MCP.
But then on the other hand, could not history have been very different if the MCP were allowed to participate in the democratic process of a free Malaya? It could very well have been that they would have faded into obscurity as the Malayan peoples decided that their communist ideology was not for them.
But, it is pointless playing guessing games with what has happened in the past. What should be done however is to study history with a dispassionate eye. Only in this way can we ever come close to that elusive and subjective thing known as the truth.
Conversely what we should not do is justify decisions made today based on a very poor and blinkered view of the past.
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