Malaysia – A lost democracy?

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We have failed miserably in dealing with complex issues of society by resorting to a political culture of promoting fear and division amongst the people, says Zaid Ibrahim.

Let me start by inviting you back into history. Imagine that it is the morning of the 31st of August 1957. At midnight, an independent nation calling itself the Federation of Malaya is to be unveiled. Conceived as a cutting edge model of multiracial and multi-religious coexistence and cooperation, it is poised to stand out as an example of what can be achieved through diplomacy and a respect for the spirit of democracy. It is of great historical significance that the transition from colony to independent nation, so often achieved only at the great price that turmoil and unrest exacts, has been achieved peacefully. Though this is a process that may have been made more difficult without the skill and fortitude with which negotiations to that end have been carried out, they do not define it. That honour goes to the aspirations of all those who call Malaya home. The quest for self-determination has not been one that recognised race. It has been, simply put, a Malayan one.

I would like to think that as midnight approached, one of the elements that gave confidence to the Alliance leaders and, in fact, all Malayans was the knowledge that a constitutional arrangement that accorded full respect and dignity for each and every Malayan, entrenched the Rule of Law and established a democratic framework for government had been put in place. The Federal Constitution was a masterful document. Inspired by history and shaped lovingly to local circumstance, it was hand-crafted by a team of brilliant jurists who appreciated that they could not discharge their burden without first having understood the hearts of minds of those who would call this nation their home and whose children would call it their motherland. Hundreds of hours of meetings with  representatives of all quarters resulted in a unique written constitution that cemented a compact between nine sultanates and former crown territories. This compact honoured their Highnesses the Malay Rulers, Islam and the special status of the Malays even as it seamlessly allowed for constitutional government and created an environment for the harmonious and equal coexistence of all communities through the guarantee of freedoms and the establishment of the institutions that would allow for the protection and promotion of these guarantees. If at all there was a social contract, it was the guarantee of equality and the promise of the Rule of Law.

I would say that as at 31st August 1957, the Federation of Malaya was set to become a shining example of a working democracy. Though special provisions had been included in the Constitution to allow for protective affirmative action measures where the Malays were concerned, and later the natives of Sabah and Sarawak when these states merged into the renamed Federation of Malaysia, and for declarations of Emergency and the enacting of exceptional laws against subversion, these provisions were not anti-democratic nor were they undermining of the Rule of Law. Conversely, if used as contemplated by the founders of the Constitution, they were aimed at protecting democracy from grave uncertainties that could undermine the very foundations of the nation.

Democracy lost?

If I sound nostalgic, it is because in some ways it could very sadly be said that democracy and the Rule of Law, as they were understood at the time this nation achieved its independence, at a time when I was much younger, have been consigned to the past. Events that followed in history undermined and stifled their growth. To understand how this came about and the state of things as they are, one however must have an understanding of the politics of the country. I seek your indulgence as I attempt a brief summary of key historical events.

After the euphoria of 1957, race-relations took a turn for the worse in 1969. The race riots of that year have marked us since. As a response, adjustments were made and measures introduced to keep what was now perceived to be a fragile balance in place. The Rukun Negara was pushed through as a basis of national unity and the New Economic Policy (NEP) was unveiled by which the government was mandated to address the disparity in wealth between the Malays and the other communities, in particular the Chinese, that had been identified as the root cause of the resentment that had exploded into violence. These measures, in my view, were on the whole positive. They were agreed to by all the political parties making up the government, in part due to an understanding that the NEP was a temporary measure aimed at assisting the Malays that would not disadvantage the other communities. The late Tun Dr Ismail talked about giving the Malays an opportunity to survive in the modern competitive world. It was readily appreciated that unless society as a whole addressed and rectified certain historical imbalances and inequities, the country would flounder. In my view, these measures were easily reconciled with democracy and the Rule of Law.

From ‘social contract’ to Ketuanan Melayu

The 1980s presented a different scenario altogether. We saw a unilateral restructuring of the so-called Social Contract by a certain segment of the BN leadership that allowed for developments that have resulted in our current state of affairs. The non-Malay BN component parties were perceived by Umno to be weak and in no position to exert influence. Bandied about by Umno ideologues, the Social Contract took on a different, more racialist tone. The essence of its reconstructed meaning was this: that Malaya is primarily the home of the Malays, and that the non-Malays should acknowledge that primacy by showing deference to the Malays and Malay issues. Also, Malay interest and consent must be allowed to set the terms for the definition and exercise of non-Malay citizenship and political rights. This marked the advent of Ketuanan Melayu or, in English, Malay Supremacy. Affirmative action and special status became a matter of privilege by reference to race rather than of need and questioning of this new status quo was not to be tolerated.

As Ketuanan Melayu evolved and entrenched itself, Islam became political capital due to the close links between Malays and the religion. The Constitution itself defines a ‘Malay’, for purposes of affirmative action, as someone who amongst other things professes the religion of Islam. This over the years led to a politically driven articulation of Malaysia as an Islamic State. Again, no questions were tolerated. Majoritarianism had become the governing paradigm of governance as the character and nature of rights were defined by Malay interests and defined by them.

This new political philosophy in which the primacy of Malay interests was for all purposes and intents the raison d’être of government naturally led to interference with key institutions. I say naturally as it was, and still is, impossible to reconcile the principles of equality and civil rights of the people of this country with the primacy of one group over all others. Needless to say, a new social order in which some are made to defer to the primacy of others is not going to be easily accepted. As such, in order to enforce compliance and to encourage acceptance, harsh measures would have to be taken to quash protest or disagreement. Policy doctrine or diktat not supported by consensus will almost certainly be a subject of contention. It is for this reason that in the 1980s already harsh anti-democratic laws that allowed for the suppression of legitimate dissent such as the Internal Security Act, the Official Secrets Act, the Police Act, the Printing Presses and Publications Act and the Sedition Act were tightened further. Where possible, reliance on them was made immune from judicial scrutiny, a feat achieved only through a constitutional amendment that suborned the Judiciary to Parliament. It got to a stage where when more than five friends got together, one wondered whether it was wiser to obtain a police permit. Such was the state of the law, such was the state of democracy.

Mukhriz Mahathir will probably be the new Umno youth leader. In saying as he did recently that there is no need for law and judicial reforms as it will not benefit the Malays, he typifies what is perceived as the kind of Umno leader who appeals to the right-wing of Malay polity. That he may be right is sad as it leads to the ossification of values that will only work against the interests of the party and the nation. This type of thinking may pave the way to a suggestion in the future that we may as well do away with general elections altogether as they may not be good for the Malays for if the justice that a revitalised Rule of Law would allow for is not to the benefit of the Malays, what is? More inefficiency, more corruption and a more authoritarian style of government perhaps. We are a deeply divided nation, adrift for our having abandoned democratic traditions and the Rule of Law in favour of a political ideology that serves no one save those who rule.


Whither rule of law?

How else can we describe the state of affairs in Malaysia? In a country where the Rule of Law is respected and permitted to flourish, just laws are applied even-handedly and fairly. I can point to numerous instances where that has not been our experience. Let me point a few out to you. A gathering of one group constitutes an illegal assembly but not that of another. A speech or publication is seditious or constitutes a serious threat to the security of the nation such as to warrant detention without trial under the ISA if published by one person but not another. This cannot be right even if it were to be to the benefit of the majority, which is not the case. My belief in constitutional democracy and the Rules of Law is founded on an acceptance of their functional qualities and the prospect of sustainable and inclusive development that they offer. It is of no concern to me whether Fukuyama was right when he declared that in view of the success of liberal democracies all over the world and the collapse of communism, mankind had achieved the pinnacle of success and history was dead.

There are less esoteric reasons but as, if not more, compelling ones. Indonesia’s transition to democracy since the end of military rule in 1998 showcases these. The majority of Indonesians have embraced democracy, religious tolerance, and religious pluralism. In addition, a vibrant civil society has initiated public discussions on the nature of democracy, the separation of religion and state, women’s rights, and human rights more generally. These developments have contributed to a gradual improvement in conditions for human rights, including religious freedom, over the past few years. Since 2003, Indonesia has also overtaken Malaysia on the Reporters sans Fronteres Press Freedom Index, moving up from 110th place to 100th out of 169 countries covered. Malaysia on the other hand has dropped from 104th place to 124th place in the same period.

I am not surprised. In 1999, Indonesia passed a new Press Law that, in repealing two previous Suharto administration laws, guaranteed free press through the introduction of crucial measures. This new law allows journalists to freely join associations, guarantees the right of journalists to protect their sources, eliminates prior censorship of print or broadcast news and makes the subverting of the independence of the press a criminal offence. It also establishes an independent body to mediate between the press, the public and government institutions, uphold a code of ethics and adjudicates disputes. Progress has not stopped there. On 3 April 2008, Indonesia passed its Freedom of Information Act. This latest law allows Indonesia’s bureaucracy to be open to public scrutiny and compels government bodies to disclose information. To enforce disclosures and to adjudicate disputes, a new body has been created under the new law, independent of government and the judiciary. While there remains some debate about the penal sanctions for misuse of the law, the passing of the Act clearly is a step in the right direction.

The lessons of the African and the Caribbean states are there for all to see. Do we emulate Zimbabwe or do we take Botswana as our political and economic model? How is it that Haiti is far behind the Dominican Republic in economic terms when they both achieved their independence at about the same time, and have the same resources? Singapore’s success is mainly attributed to its commitment to good governance and Rule of Law, even though political dissent is not tolerated. Democracy, a system of government based on fair and transparent rules and laws, and the respect people have for institutions of government – these make the difference. Economic prosperity drives democracy. But stifle true democracy – and the inevitable outcome is economic ruin. It is useful to remember that freedom is vital for economic development.


Test of constitutionality

The critical feature of a constitutional democracy to me is the test of Constitutionality itself. Does the government allow its own legitimacy to be questioned? Does it permit executive decisions to be challenged? Written Constitutions normally provide the standard by which the legitimacy of government action is judged. In the United States the practice of judicial review of congressional legislation ensures that the power of government to legislate is kept under check. Bipartisan debate and votes of conscience are not only encouraged but also expected of Congressmen and    Representatives. More recently the Basic law of Germany and Italy provided explicitly for judicial review of parliamentary legislation.

We have the opposite situation here. The jurisdiction of the High Court can be, and has been,ousted when it comes to challenges of executive decisions even if such decisions impact on fundamental liberties and other rights under the Constitution. For instance, where government compulsorily acquires land for a public purpose, the Courts are prevented from questioning the bona fides of the acquisition. Where a discretion is exercised by the Minister of Home Affairs under the Internal Security Act, the Court is barred from examining the exercise of the discretion except so far as to ensure that the procedural requirements have been followed. Such detention without trial would be considered repugnant in any system predicated on the Rule of Law.

Nation building is not a simple process. It is not achieved through tinkering with political ideologies or injudicious use of the coercive powers of state. These do not promote the lasting peace and stability that we crave for. We have failed miserably in dealing with complex issues of society by resorting to a political culture of promoting fear and division amongst the people. The Ketuanan Melayu model has failed. It has resulted in waste of crucial resources, energy and time and has distracted from the real issues confronting the country. Tan Sri Muhyiddin, the DPM-in-waiting it would seem, suggested that there is a need for a closed-door forum for leaders of the BN to develop a common stand; a renewed national consensus grounded on the Social Contract. This is positive step but it should include all political leaders and be premised on the Social Contract that was the foundation of independence.

The results of March 8th clearly show that the BN no longer exclusively speaks for the rakyat. Promoting discourse and dialogue is essential, as we must learn to talk and to listen to one another again. The recent pronouncement by the Malay Rulers underscores the urgency with which we need to look at rebuilding the politics of consensus. Communication and trust amongst the people must be re-established.

The above is the first part of a speech by Zaid Ibrahim delivered at a LAW ASIA 2008 conference on 31 October 2008 at the Kuala Lumpur Convention Centre.

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