Is Malaysia really lost and broken? People of goodwill must continue to strive to bring about change: we can rebuild the country into a land where we do not live in fear, but in freedom, says Zaid Ibrahim, in the concluding part of his presentation.
The founders envisaged a Government for all Malaysians. Even Tun Dr. Mahathir spoke about it. One of the elements of Vision 2020 as envisaged by Tun Dr. Mahathir Mohamed was the creation of a united Bangsa Malaysia. How can such a vision be achieved if the Government is not willing to listen to the grievances of a substantial segment of Malaysians? Tun Dr Mahathir Mohamad introduced the idea of Bangsa Malaysia in a speech entitled “The Way Forward”. This is one of nine central and strategic challenges of Vision 2020. Although he only mentioned Bangsa Malaysia once, its use had sparked enthusiastic debates.
The creation of Bangsa Malaysia is the challenge of establishing a united Malaysian nation with a sense of a common and shared destiny. This must be a nation at peace with itself, territorially and ethnically integrated, living in harmony and full and fair partnership, made up of one Bangsa Malaysia with political loyalty to the nation. Different meanings have been given to that term Bangsa Malaysia. Many believe that it was intended to bolster the non-Malays through the envisioning of a united country where their cultural and religious uniqueness would not be threatened; Tun Dr. Mahathir in fact explicitly mentioned this. On the other hand, some believe that Bangsa Malaysia was just a neat reference to a Malaysia united under Malay or, more appropriately, Umno hegemony.
Whatever the case, I would like to believe that whilst the government of BN has done little other than pay lip-service to the concept, principally by issuing pandering slogans, since Dr Mahathir left, the country will nevertheless in the future move towards a more pluralistic society. The integration of different ethnic groups would occur naturally through the expansion of economic life and through the unintended effects of globalization so much so that ethnicity will be depoliticised. We nonetheless need to actively promote efforts at an institutional level if we want this notion of Bangsa Malaysia to materialise. The political parties making up government may not want to do so for their own short-term interests but as a whole, the people will call for it.
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This brings us again to the democracy and the Rule of Law. We will not succeed in promoting, a united country and allow for the evolution of Bangsa Malaysia if we do not subscribe to the Rule of Law. We need the openness, freedom and social justice that will be possible only with it in place and democracy. How do we bring unity to the people if we are not prepared to respect their dignity?
To achieve the aspirations of the New Economic Policy, Bumiputras need to be given thinking tools to participate in the global economy. At present their attention is kept focused, almost on a daily basis, on race- related issues even though there are serious issues such as the economy and the lack of trust in the institutions of government to deal with. The obsession with the Ketuanan Melayu Dotrine has in fact destroyed something precious in us. It makes us lose our sense of balance and fairness. When a certain Chinese lady was appointed head of a state development corporation, having served in that corporation for 33 years, there were protests from Malay groups because she is Chinese.
A new economic vision is necessary, one that is more forward looking in outlook and guided by positive values that would serve to enhance cooperation amongst the races. This will encourage change for the better; to develop new forms of behaviour and shifts of attitudes; to believe that only economic growth will serve social equity; to aspire to a higher standard of living for all regardless of race. We need to meaningfully acknowledge that wealth is based on insight, sophisticated human capital and attitude change. A new dynamics focused on cooperation and competition will spur innovation and creativity.
Some might say that this is a fantasy. I disagree. How do we go about transforming the culture and values of the Bumiputras so that their ability to create new economic wealth can be sustained? By changing our political and legal landscapes with freedom and democracy. Dr Mahathir was right to ask that Malays embrace modernity. He fell short of what we needed by focusing on the physical aspects of modernity. He was mistaken to think all that was needed to change the Malay mindset was science and technology. He should have also promoted the values of freedom, human rights and the respect of the law. If affirmative action is truly benchmarked on the equitable sharing of wealth that is sustainable, then we must confront the truth and change our political paradigm; 40 years of discrimination and subsidy have not brought us closer. There is a huge economic dimension to the Rule of Law and democracy that this government must learn to appreciate.
Relations between Islam, the state, law and politics in Malaysia are complex. How do we manage legal pluralism in Malaysia? Can a cohesive united Bangsa Malaysia be built on a bifurcated foundation of Sharia and secular principles? Will non-Muslims have a say on the operation of Islamic law when it affects the general character and experience of the nation? This is a difficult challenge and the solution has to be found. Leading Muslim legal scholar Abdullah Ahmad an-Na’im is hopeful. He believes that the way forward is to make a distinction between state and politics. He believes that Islam can be the mediating instrument between state and politics through the principles and institutions of constitutionalism and the protection of equal human rights of all citizens.
Whatever the formula, we can only devise a system that rejects absolutism and tyranny and allows for freedom and plurality if we are able to first agree that discourse and dialogue is vital. Democracy and respect for the rights and dignity of all Malaysians is the prerequisite to this approach.
A compelling argument for a constitutional democracy in Malaysia is that only through such a system will we be able to preserve and protect the traditions and values of Islam and the position of the Malay Rulers. For a peaceful transition to true democracy of this country, one of key issue that requires care is the position of Islam and its role in the political system of the country. In fact I regard this to be of paramount consideration. Although the expression Islamic state is heard from time to time, and whilst it is true that Abim, Pas and lately Umno had made the concept a key part of their agenda, the areas of emphasis differ and are subject to the contemporary political climate.
For reasons too lengthy to discuss now, I would say that the “synthesis of reformist Islam, democracy, social welfare justice and equity” would be sufficient to appease the majority of Muslims in so far as the role of Islam in public life is concerned. This state of affairs could be achieved peacefully and without tearing the Constitution apart. The progressive elements in Pas, inspired by Dr Burhanuddin Helmi in 1956, are still alive. Pas leaders of today who have carried that torch also make reference to a more accommodating vision of Islam that puts a premium on substantive justice and the welfare of the people as major policy initiatives.
Umno’s approach (or more accurately Dr Mahathir’s approach) to Islamic content in public policies was articulated in the early 1990s. This however achieved little in changing the political system. His “progressive Islam “was more nationalistic than Pas, and designed to usher new elements of modernity into Islam. Science and technology were touted as the means to defend Islam and the faith. The approach taken was short on the ideas of human rights and social justice, and the Rule of Law and designed more to convince the rakyat of Islam’s compatibility with elements of modernity like science and technology.
Anwar Ibrahim, the present opposition leader, articulated a brand of reformist Islam that was more individual centered and liberal. Drawing its humanist thought from the great Muslim scholar, Muhammad Iqbal, Islam Madani gave emphasis on human rights and freedoms. Islam Hadhari came on to the scene just before the 2004 general elections as another form of progressive Islam, possibly inspired by the thinking of another noted scholar, Ibn Khaldun. Unfortunately, nothing much came out of this effort.
Preventing conflicts, managing disputes
Whichever model or line of thought that will find permanence in our political landscape, Islamic aspirations and ideals will certainly become an important component in the realm of public policy. To prevent conflicts and ensure that various beliefs are absorbed and accepted into the political system, it is imperative that no force or compulsion is used. This is where the merit of a government adopting democracy and Rule of Law becomes apparent. The discussions and deliberations of even sensitive and delicate issues will make the participants aware of the value of ideas and the value of peaceful dialogues.
Managing disputes through a determined, rules-based process will allow for a peaceful resolution of problems. The tolerance shown by the protagonists in Indonesia over delicate religious issues bodes well for that country and serves asa useful illustration of what could be. Approached this way, Islam in the context of Malaysian politics will be prevented from being as divisive and as threatening as race politics.
In this, the issue of conflicts of jurisdiction still requires resolution. Our civil courts are denuded of jurisdiction to deal with matters that fall within the jurisdiction of the Sharia Courts. No Court has been given the jurisdiction and power to resolve issues that may arise in both the Sharia Courts and the civil Courts. The present separation of jurisdictions presupposes that matters will fall nicely into one jurisdiction or the other. However, human affairs are never that neat. What happens to the children of a marriage where one party converts to Islam and the other party seeks recourse in the civil Court? Or when the Sharia Court pronounces that a deceased person was a Muslim despite his family contesting the conversion? Or where the receiver of a company is restrained from dealing with a property by a Sharia court order arising out of a family dispute? Where do the aggrieved parties go? I had suggested the establishment of the Constitutional Court, but that plea has fallen on deaf ears.
There is marked increase in the use of harsh draconian measures in dealing with political and social issues. Some people say that groups such as Hindraf advocate violence and therefore that justifies the use of such measures. They may have overlooked the fact that violence begets violence. Was not the detention of Hindraf leaders under the Internal Security Act itself an act of aggression, especially to people who consider themselves marginalised and without recourse? It is time that the people running this country realise that we will not be able to resolve conflicts and differences peacefully if we ourselves do not value peaceful means in dealing with problems.
The situation has been aggravated by the absence of an even-handed approach in dealing with organisations like Hindraf. While I applaud the Prime Minister for calling on the Indian community to reject extremism, should not a similar call be made to the Malay community and Utusan Malaysia? I call on the Prime Minister, both the outgoing and the incoming, to deal with such issues fairly. Start by releasing the Hindraf leaders detained under the ISA. The release would create a window for constructive dialogue on underlying causes of resentment. I also appeal for the release of Raja Petra from his ISA detention. He is a champion of free speech. His writings, no matter how offensive they may be to some, cannot by any stretch of the imagination be seen as a threat to the national security of this country.
The Malays are now a clear majority in numbers. The fear of their being out numbered is baseless; they are not under siege. The institutions of government are such that the Malays are effectively represented, and there is no way the interest of the Malays can be taken away other than through their own weakness and folly. The BN Government must abandon its reworked concept of the Social Contract and embrace a fresh perspective borne out of discussions and agreements made in good faith with all the communities in this country. It is time for us all to practice a more transparent and egalitarian form of democracy and to recognise and respect the rights and dignity of all the citizens of this country.
At the end of the day, we must ask ourselves what it is that will allow us to protect all Malaysians, including the Malays? Good governance is about good leadership; and good leadership is all about integrity. We must have leaders of integrity in whom people can place their trust. If there is no integrity in leadership, the form of government is immaterial – it will fail. Integrity in leadership is the starting point to creating a just and fair society. Integrity of leadership does not lie only with the Prime Minister or his cabinet. It needs to permeate through all the organs of government.
Judges, stick to justice!
A key organ of government, the one tasked to protect the rights of the common man against the excesses of government, is the Court. The Rule of Law in a constitutional democracy demands that the Judiciary be protective of the nation’s subjects be they, I would say especially, the poor, the marginalised and the minorities. The Courts must act with courage to protect the constitutionally guaranteed rights of all citizens, even if to do so were to invoke the wrath of the government of the day. Even though not all Judges will rise to be Chief Justice, in their own spheres they must show courage. For example, in PP vs Koh Wah Kuan (2007), a majority bench of the Federal Court chose to discard the doctrine of separation of powers as underlying the Federal Constitution apparently because the doctrine is not expressly provided for in the Constitution.
This conclusion is mystifying as surely the court recognises that power corrupts absolutely and can thus be abused. If the courts are not about to intervene against such excesses who is? Checks and balance are what the separation of powers is about. Surely the apex court is not saying that the courts do not play a vital role in that regard?
The reluctance of the court to intervene in matters involving the Executive is worrying. In Kerajaan Malaysia & Ors v Nasharuddin Nasir, the Federal Court ruled that an ouster clause was constitutional and was effective in ousting the review jurisdiction of the Court if that was the clear intention of Parliament. The apex court so readily embraced the supremacy of parliament even though the Constitution declares itself supreme. There is nothing in the Federal Constitution that explicitly sets out the ability of Parliament to limit the Court’s review jurisdiction.
The Court could have just as easily held that as the Constitution was the Supreme Law, in the absence of express provisions in the Constitution the Court’s review jurisdiction remained intact. Is it not possible that in vesting the judicial authority of the Federation in the High Courts the framers of the Constitution intended the review powers of the Courts to be preserved from encroachment by the Executive and Legislature? In India, the Supreme Court has held on tenaciously to a doctrine of ‘basic structure’ that has allowed it to ensure the integrity of the democratic process and the Rule of Law. Any attempt to denude the courts of the power to review by amendment of the Constitution has been struck down.
The Rule of Law has no meaning if judges, especially apex Court judges, are not prepared to enter the fray in the struggle for the preservation of human rights and the fundamental liberties. Supreme Court judges in other jurisdictions have done so time and time again. Though it is far less difficult to accommodate the will of the government, that must be resisted at all costs, particularly where justice so demands. Only then can we say that Malaysia is grounded on the Rule of Law.
To all our judges I say discard your political leanings and philosophy. Stick to justice in accordance with the law. As Lord Denning reminded us: Justice is inside all of us, not a product of intellect but of the spirit. Your oath is to the Constitution; shield yourself behind it. Without your conviction, democracy is but a concept.
I would like to say more about law, democracy and about our beloved country. But time does not permit. In any event, I have to be careful. The more we say, the more vulnerable we become. But my parting message is this: The people of goodwill must continue to strive to bring about change, so that we can rebuild the trust of all Malaysians. From that trust, we can rebuild the country where we do not live in fear, but in freedom; that the rights of all Malaysians are acknowledged, respected and protected by the system of law that is just and fair. There is no quest more honourable and no struggle more worthy of sacrifice.
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