The subject given to me is rather daunting as I have no legal background nor am I a constitutional expert to be able to analyse in detail the fundamental principles of the Federal constitution.
Also, I am more used to writing short letters to the press. When Datin Halimah of PCORE told me my talk today is about half an hour , I was wondering what I can say to fill up the time. All my working life had been in economic planning and finance. Although a layman on the constitution and the law , I was all the time aware that when planning for growth and development in the economy or when managing the country’s finances in the Ministry of Finance, the targets could only be achieved if we had political and social stability.
Luckily there was not much of an issue about Malaysia’s stability , but the trauma of the May 1969 racial riots rattled the country . Although the violence did not spread beyond the K.L. area , the racial tensions had a deep impact on the political landscape. It was the most traumatic event in the new nation and the government responded to this tragedy by suspending parliament and giving itself emergency powers to rule directly under the Yang di Pertuan Agong , without being accountable to any democratic process. The shock of this event led to an awareness about the fragile nature of Malaysian society. It also led to a political consensus across party lines that a solution must be found to build d a better future for this multicultural country by promoting national unity as the primary objective of national development efforts.
Two important initiatives were taken. One was the promulgation of the Rukunegara as the national ideology. Introduced in 1971, the Rukunegara emphasised the 5 common values of belief in God , loyalty to king and country, upholding the constitution, rule of law, good behaviour and morality. These values apply to all races and religions.
Second was the introduction of the New Economic Policy which was incorporated for the first time into the Second Malaysia Plan 1971-75 and was elaborated in the Outline Perspective Plan 1970 -90 as a long term strategy for achieving growth with distribution to reduce poverty irrespective of race and restructure the society. By expanding the role of the public sector in the economy and encouraging and aggressively promoting the expansion of the private sector , both local and foreign , the country was able to successfully achieve the desired results , especially in eradicating absolute poverty and restructuring the employment pattern , resulting in more Malays being represented in the modern sectors of the economy and in the urban centres.
The socio- economic achievements and the various reforms that were introduced in the economic and financial policies made Malaysia’s economy more structurally diversified and better able to withstand external shocks , thus putting us on a strong basis to become a high income country by 2020 as envisaged in the National Transformation Programme.
The three major factors often cited in explaining Malaysia’s higher than average economic performance compared to many other developing countries are its rich natural resource base, its well developed infrastructure and its relatively well educated work force.
Over and above these favourable factors is the system of law and order and the institutions of justice and administration which the country inherited from its British colonial masters, and which were all incorporated into the Federal constitution when Malaysia became independent in 1957. It is a system that all countries can trust because they are familiar with the concepts of constitutional democracy and the rights of citizens under the law. This trust is very important as it makes. Malaysia a reliable and good place for business and for foreigners to work and live in.
As evidence of the country’s attractiveness, the inflow of foreign direct investment into the country in 2014 reached a record high. Further all our economic fundamentals are still strong despite the substantial drop in oil and commodity prices and the bad publicity about 1MDB, indicating that there is no loss of investor confidence over bad governance and corruption.
While all these good statistics speak well for the economy , there is growing uneasiness locally that underneath all the prosperity and affluence , Malaysia’s constitution and its democratic institutions are facing challenges from several directions.
One is the politicisation of race and religion which is getting out of hand , and the impunity with which extremist groups are acting to fight for their cause is indeed worrying.
Second, is the increasing power of the religious bureaucracy which seems to be acting against the government’s policy of projecting Malaysia as a moderate country.
Thirdly, there is tendency to pass laws using national security, religion, race and the Sultans as the basis without consulting with all stakeholders and interest groups to ensure that although national security is important, the need to protect the rights of citizens for justice is equally important.
Fourth, is the increasing intolerance for dissent, freedom of speech and assembly, although these values are enshrined in the constitution.
Fifth, human rights for women have often been violated in the name of Islam.
And sixth, which is the most worrying, is the apparent unwillingness of the law and the courts to intervene when injustice occurs, raising concerns whether there is a commitment in defending the system of justice among government agencies.
Al these undercurrents of discontent indicate that while our constitution places the highest priority on the rights of the people, in practice there are many shortcomings in the execution.
All these indicate to me also that while Malaysia is a haven to foreigners, including those who choose to make this country their retirement home, Malaysians who live all their life here do have many issues to look at.
The constitution states that Islam is the official religion of the country. Other than this, all the institutions of law, justice and public administration are similar to those found in other democracies in both the West and East.
As a democracy which guarantees the fundamental rights of citizens to freedom of expression and assembly and right of dissent, the constitution provides checks and balances between the head of state, the legislature, the judiciary and the executive, which are meant to prevent abuse of power by any one branch of government. Further, as a Federation, power is shared with the state and local governments so that the central government does not control everything.
There is another constitutional safeguard which is related to religion. The Constitution recognises the important role that Islam plays in the life of Malays and Muslims and that the Sultans are the traditional heads of religion in their respective states. It has, therefore, allowed for the setting up of syariah courts to deal with Islamic laws on marriage, divorce and inheritance and on matters against the precepts of Islam.
To support the administration of Islam, each state has established its own religious affairs department. These religious authorities have been playing an increasingly aggressive role in issuing fatwas as moral guidance to Muslims without full consultations with civil society groups and constitutional experts.
These fatwas touch on the issues of moral behaviour and personal sins of Muslims and, therefore, are an intrusion into their personal life styles and liberties. When the fatwas are legislated in the state legislatures to become syariah laws to criminilise personal sins, then the state religious authorities are often transgressing and acting beyond their power under the Constitution which states that crimes are Federal matters and the authority of syariah courts is limited on the punishment they can impose.
The criminilisation of personal sins has often led to a conflict of jurisdiction between the syariah courts and the civil courts because the constitution states that any law passed in the country must not contravene the basic provisions regarding the rights of citizens and that a civil court has the power to strike out a law that is unconstitutional, whether it is civil or syariah. It is clear therefore, that the Constitution clearly intends it to be the supreme source of law so that there is only one system of justice in the whole country. It is in this context of the supremacy of the Federal Constitution that there is so much concern that if Kelantan succeeds in getting the hudud law passed through parliamentary approval, this will set the stage for hudud spreading to other states, and after that, for other amendments to be made for making Malaysia an Islamic state.
Some Islamists assure us that the Islamic state will be a democracy but I have my doubts about this assurance because according to the fundamentalist belief, democracy is not compatible with Islam and therefore, an Islamic state has to be a theocracy where the the council of ulamas make all the decisions. The extremists are saying loudly that democracy is a relic of western imperialism and is propagated by the Jews and Christians to dominate the world and suppress Islam. They say very clearly they are against democracy, secularism and liberalism because these are unIslamic.
Saudi Arabia and Iran are two theocracies where religion rules. In Iran the spiritual leaders have the final say on everything, from women’s lipsticks to the nuclear deal with the Western powers . Although they have elections, the elected president or the parliament is powerless if the supreme head of the religious council objects to any of their proposals.
The winds of change have been blowing harder in the Middle East in recent years, giving some hope that change will come. Already many civil society groups have emerged especially in the social media and in the underground networks fighting for human rights and more freedom for women.
In both Iran and Saudi Arabia, the leading figures leading the silent protest are women. I believe when Saudi Arabia, the spiritual home of Sunni Islam, changes towards democracy and liberalism, the inspiration for Islamic fundamentalism and extremism will subside throughout the Muslim world, including Malaysia. Until then, we have to brace ourselves for more challenges on our constitution and our democracy from the Islamic fundamentalists, many whom are graduates from the Middle East, bringing back their extreme ideologies to Malaysian politics and religious classes.
Talking about winds of change, I am delighted to read in the news a few days ago a statement by the Secretary General of the Organisation of Islamic Cooperation [OIC], at a meeting in K.L., calling on Muslims to stop labelling other Muslims as infidels because this will only spread hatred and sectarianism. For a multi racial country like Malaysia, sectarianism is extremely dangerous as it can easily spark off side kicks on the non Muslims , like in the war torn countries in the Middle East. The advice from the OIC chief is timely for Malaysia because there are proposals here to amend the Constitution to define Islam as Al Sunnah wal Jemaah, meaning that the minority sects like the Shiah and others will be marginalised and perhaps ostracised from the Muslim society, perhaps more severely than the marginilisation of the transgenders , the gays and homosexuals.
Malaysia must match the remarkable reforms at liberalising the economic and financial management of the country with similar boldness and courage in adopting a moderate approach in religion and defending the secular nature of the Federal constitution and its system of constitutional democracy. This moderate approach must be led by government leaders being more authoritative against the religious authorities who are making their own decisions affecting the human rights of citizens, especially women and ignoring the basic principles of personal freedom under the Constitution. It is important for the government to intervene before the local population start to lose confidence in the system of justice and before investors start losing confidence in the economy.
Confidence is the most important factor when investors are deciding to expand their operations or set up a new business here. It is going to be difficult for a foreign company to convince its board of directors sitting ten thousand miles away from here that Malaysia is a good place for business when they hear stories about religious extremism and political tensions caused by the excessive use of religion in politics and government. As Malaysia’s history of economic development has clearly shown us, we have become an economic success story because the private sector believes in the system of law and order here. Once this confidence is shaken, investors will stay away , money will flow out of the country, the ringgit will become worthless , businesses will decline and workers will get thrown out into the streets as the companies close down their operations.
It is significant to note that after the Arab Spring revolutions in the Middle East , countries like Egypt and Tunisia were very careful about using syariah in drafting a new constitution because they were worried about the repercussions on human rights and the status of women . They were also concerned that the emphasis on religion and its restrictions on personal freedoms will have a damaging effect on their efforts to rebuild their economy with foreign investment and borrowing from international institutions. They decided to adopt the moderate approach of pragmatism in drafting their new constitutions. Their constitutions are secular like in Malaysia.
Democracy works best for the people when the provisions in the constitution are strictly observed — free and fair elections , freedom of speech and right of dissent. To prevent these basic provisions being violated by governments introducing draconian laws to curb the fundamental rights, many governments have established a constitutional court where the public can contest any unconstitutional action by the government. I think Malaysia should have a constitutional court like in Indonesia but others say this is not necessary here because the Federal Court is sufficient for the purpose. Besides, they say that a constitutional court is only meaningful if we can find judges who are prepared to be professionally independent of the executive branch.
Perhaps, the constitutional court can be deferred to the future but for now, its important for the government to proceed with its declared intention under the National Transformation Programme to raise the level of integrity and professionalism in the judiciary, in the police, in the civil service and in the anti corruption agency to reflect the basic feature of the constitution that democracy means a government of the people, by the people and for the people.
In some countries, they have given emphasis to this concept of people’s government by having an Ombudsman to act as an intermediary between the government agencies and the public making the complaints about abuse of power.
In Malaysia there are several proposals along the same lines. For example, a proposal to establish an independent body to investigate into complaints of police misconduct , death of remand prisoners in police custody or unnecessary use of force. Then, there is a proposal to make the anti corruption agency directly responsible to parliament and not to the prime minister to project an image of it being truly free from political interference. There is also a suggestion to introduce meritocracy in all government agencies so that senior civil servants are appointed to the top posts based on merits and a proven record of professionalism in giving inputs into the decision making process.
These administrative reforms are long overdue. They need to be expedited to improve the functioning of government administration and also to convince the cynics that democracy is protecting the interests of the public against corruption, wastage of funds , cronyism and nepotism. Progress in these areas of governance will prove to the Islamists that a secular government is a clean government . All Muslim countries need a clean government more than they need an Islamic state.
The best way for Malaysia to uphold the principles under the Constitution and contain the extremist threat is to keep the space open for the public to express their preference through clean and fair elections and a free media . I think we should have confidence in the power of free and fair elections to give us good government The old view that elections do not necessarily reflect public choice is no longer true today because the people are better educated and more knowledgeable on what they expect from their representatives in parliament and from the government.
I believe we can trust our public audience to listen to all views about economics, politics , education and religion in a calm manner if they are given both sides of the argument for them to digest and make up their own opinion and vote wisely at the ballot box. . The argument that Malaysia cannot be liberal in allowing media freedom because of its multicultural sensitivities is also no longer true today because most people today are issue oriented, not race oriented.
Extremists can have the freedom to use the media but when they step beyond the red line, they should be hauled up to explain their statements.. This is where a free and independent media can play a role in putting the recalcitrants on the mat to explain their behaviour. The chances are no one would like to be exposed on the media for his stupidity.
A fundamental principle of a Federal Constitution like ours is that power is not centralised in the capital but is shared with the lower levels of government i.e the states and local authorities. I therefore think that we should reinstate local elections in all the major cities and districts so that the spirit of the Constitution is recognised on the ground.
Democracy is exciting and meaningful when the grassroots see it in practice in front of them.. They may not like the central government but if the state and local authority governments are delivering good services on the ground, they will happy about democracy and going to the polls.
In developed countries, local authorities are a very significant part of their democracy and also a good training ground for those who want to make a start in a political career. In fairness to the states, the Federal government should allocate more resources to the state and local governments and grant them more administrative and financial autonomy so that they can govern themselves more efficiently. Presently, every decision has to come from the central ministries and departments, which is not an efficient way of governing. It does not give people much respect to their state leaders who seem so powerless in making quick decisions , especially in dealing with urgent response to natural disasters like floods and landslides or in taking immediate steps to prevent an environmental tragedy.
Also, giving too much power at the centre is bad because absolute power breeds nepotism, cronyism and corruption, which in turn make people cynical about their national leaders.
I come back to the point which I often repeat : The best way to uphold the Constitution and keep our democracy alive and vibrant is for the government to practise the highest standards of integrity, transparency and accountability so that people have faith in the administration and in the leaders who are governing them. When they have this confidence they tend to be more forthcoming in defending the principles of justice and human rights in the Constitution and are convinced why they need to defend it.
We have seen in western democracies that despite the challenges of war and recessions that they face from to time and the terrorist attacks aimed at creating fear among the people, the public remain confident in the superiority of their systm of government and way of life . They know that if the government is not doing enough to protect their security and their welfare, they can use their democratic rights at the next elections to elect new leaders.
And as so often in their history, they make changes and introduce reforms to improve the workings of their democracy in keeping with the changing expectations from the people. The flexibility to change and adapt is perhaps the biggest reason why democracy has survived the test of time , despite all its weaknesses and frustrations.
In contrast, we find from past history that those countries that took the extreme course of throwing away democracy in favour of one man rule or military dictatorship thinking it would offer a quick solution to their problems, often found that they had jumped from the fire into the frying pan. We often hear the fundamentalists saying that the “rakyat “can get more justice and become economically better under a caliphate than under a secular government.
Unfortunately , the Muslims who were thoroughly indoctrinated in their religious education from young grow up convinced that God’s law and an Islamic caliphate will make Malaysia a better country .. Our leaders must address this group of misguided idealistic youths before their number gets larger and more troubling for our security.
Many of them do not know from past history that when religious orthodoxy was dominant in old Europe six hundred years ago , all the Christian countries were stagnant socially , culturally and economically. After the Reformation which was followed by the Rennaissance, religion was reduced to a lower status in the affairs of state and parliament replaced the church in the government of the country .
As the people’s power grew stronger, the kings and queens of the progressive countries like England and the Scandinavian countries were required to rule not as their divine right but with the approval of parliament. This transformation of Europe from religious feudalism to parliamentary rule was what made the Christian world progress much faster than that of the Muslim world in all areas of human endeavour. With their superiority in the arts and sciences , the former ruled the seas and became super powers conquering half the world and throwing out the Ottoman Empire from their colonies in the Arab lands and in eastern Europe.
If the young are taught the true history of the world, they will think twice before rejecting parliamentary rule and democracy as old relics of European imperialism . They will begin to understand that with democracy and the power of the people, nations can improve themselves better than in the caliphates and theocracies.
Its important for our education authorities to seriously look again at the textbooks children are using in schools to ensure that they are teaching them the truth about the country, the region and the world. I have heard many stories about school textbooks which try to be so nationalistic and Islamic that they exaggerate the small events , ignoring the big changes that really made the world what it is today.
As for me , I don’t see why it is wrong to tell the children that the biggest advances in science, technology , medicine , arts and culture came from the Christians and the Jews, not because they have superior minds but because they have superior institutions of government which allow the freedom for innovators inventors, thinkers and researchers. to produce their best.
In Malaysia, we have many civil society groups working to make our democracy better so that the people and the country can achieve more progress. Unfortunately, instead of engaging with them as partners in creating a better future for all , the religious bureaucracy at the Federal and state levels , and their political supporters are taking the attitude that the NGOs like SUHAKAM, Sisters in Islam , Bersih are anti national and anti Islamic when they go to the public to rally for democratic rights, human rights and the rights of women. The more these democracy movements attract local sympathy and world attention and international support, the more hostile the authorities become towards them.
This is not the right attitude to take because it leads to unnecessary tensions in the country with the extremist factions bringing up racial and religious insults as bully tactics when they cannot find substantive arguments against the moderates.. It will serve the country and its constitution better for the government to intervene giving a clear signal that it tolerates dissent and that criticisms against the leaders in the administration of Islam are not acts of treason against king and country. The new Sedition Act does allow criticism and this is good but let us hope it works that way.
Similarly, let us hope that the new Prevention of Terrorism Act also works the way it is intended i.e. to protect the country against terrorists and not to stifle those who are fighting for the rights of the people under the Constitution.
To ensure a healthy and proper discussion on the issues of democracy, human rights, and personal liberties, I think we should support the proposals which have been made by several people to establish a parliamentary select committee on law reform and human rights comprising Members of Parliament from both the government and opposition sides of the aisle.
The system of parliamentary select committees is common in all democracies, including Indonesia , by the way, and the fact that Malaysia has only one such committee in the form of the Public Accounts Committee makes our country look like a poor practitioner of good governance. The purpose of having a select committee which in effect is a permanent parliamentary committee serviced by qualified professionals is to enable parliamentarians to have a thorough discussion on a particular bill with all stakeholders like human rights activists and specific interest groups giving their views before a bill affecting our rights is presented to the full house for debate and voting.
Another very important select committee that parliament should have is on finance and the national budget to provide parliament with the all important role of having oversight over how the government plans its revenue , expenditure and borrowing programmes . Given the great interest which the public have over the national debt, surely it is in their interest to see public funds being closely monitored in our parliament as it is in Westminster and the U.S Congress. When a select committee meets to discuss the Ministry of Finance budget for the coming year, it will hold hearings to enable interested groups, economists, and financial experts to give evidence and for the committee members, with the assistance of research carried out by their professional aids, to ask the experts to explain if there are any worries about the budget.
This system of parliamentary select committee will help to raise the image of parliament as a working institution instead of being cynically seen as a talk shop .or a rubber stamp.
I also also feel that unlike in the old days ,many of today’s MPs are well educated and civic minded individuals who enter politics to do something useful for the country and for their political career. The select committees will give them the opportunity to prove what they are really worth as lawmakers.
Another democratic practice which we can copy from the western media is to hold live t.v. interviews with the top leaders on matters of immediate concern to the public, like the recent interview with the Prime Minister to get him answer the criticisms he has been getting from Tun Mahathir. I suggest that in future interviews, the PM or any minister who is interviewed should be made to face the public live, and that he should answer to two interviewers, one playing the role of a supporter and the other the role of a critique.
To make it even more informative to the public, there should be a panel discussion immediately following the interview with the panel members commenting and giving their take on what they had just heard. By making the interview a drama not to be missed, the rakyat in the kampungs will be quite happy to forgo their Bollywood movie and watch something which is more educational. It is better for them and for the country that they hear the explanation about the national debt ,the fall in the ringgit, the GST or 1MDB directly from the responsible ministers than to hear from the hate mongers in the social media.
Finally, as a former civil servant , I should mention that the civil service too has an important role to play in implementing what the government promises to the rakyat–clean and honest administration to ease their daily life when they go to government departments to renew their licenses , to pay their bills, seek treatment in hospitals, to tender for projects , get business permits , renew passports etc.
I must say a lot of good progress has keen made through PEMUDAH and PEMANDU in the Prime Minister Department., resulting in a better image for the government. This progress has been recognised even by international organisations and the business community. As administrative red tape is often a major cause of corruption, these improvements have helped to make people feel the government is trying to make life easier, not only for business but also for the small man.
We are certainly not a country like those that I know where you have to tip the policeman controlling the traffic, or the door man at the entrance to the minister’s office or at the hospital when queuing to see the doctor. In that sort of country where people feel trampled by the civil servants everywhere they go , they just hate everything about government. and democracy. A good civil service, on the other hand, can do wonders to make people believe in democracy.
These are the ways by which we can bring the principles of the constitution and the practice of democracy closer to the hearts and minds of the people.
When the people feel engaged with their political leaders who make the laws in parliament and who serve in the government, they will feel they have a stake in the Constitution. This is what is important, that the people themselves must feel a sense of ownership in the supreme of law of the land so that they appreciate its their responsibility to defend it against those who want to replace democracy with another system of governing the country. If we can get to that level of people participation in the defense of the constitution, no extremist or terrorist group can succeed in taking away our rights and changing our way of life.
Malaysians have grown in maturity in their attitude towards democracy and have become more conscious about their constitutional rights. This is a phenomenon which all developed countries have experienced in their past history — that as the people become more affluent and the middle class becomes bigger to represent the voice of society, there are higher expectations about free and fair elections , integrity and transparency in government, freedom of speech, women’s rights and religious freedom. This is social progress. It is happening here too and government authorities should expect it and embrace it full heartedly.
There are of course, certain groups which are trying to stop this trend towards moderation and liberalism by using race and religion to intimidate and frighten people.
The government must respond to such groups with a firm stand on law and order. Political leaders should not be evasive in condemning such groups and instead, they should be open to taking quick actions against racial and religious intolerance. Most urgent of all is strong political leadership to confront the extremists now as the people are getting frustrated and desperate seeing the extremists becoming bolder by the day.
We in G25 stand ready to do our part. We are pleased that there are many other moderate groups which have surfaced to join the struggle for upholding the principles of the constitution.
Together, we will win.
(Delivered at Talk Organised by the Association of Voices of Peace, Conscience and Reason (PCORE) at the Royal Selangor Club, 25/4/15)
The Star 21 April 2015