What Malaysians can do to preserve racial and religious harmony – Faidhur Rahman

Recently, some dubious scholar from the Middle East Institute in based in Washington DC, the United States, Maszlee Malik, penned a piece on behalf of the Singapore based Institute of Southeast Asian Studies (ISEAS) titled ‘How Malaysia can reverse trend of increasing religious intolerance’ which was published in a left wing online news portal, the Malay Mail Online just earlier today.

In it he presumes to lecture Malaysians on how best to reverse a supposed trend of increasing religious intolerance by making an a priori assumption that racial and religious harmony in Malaysia have been undermined by “a series of incidents” that allegedly began in 2009 with the cow head protest incident in Shah Alam.

These incidents, as well as past legislative proposals by the government, statements by Muslim leaders and the “over institutionalisation of Islam” he says, “threatens the very fabric of Malaysia’s multi-ethnic and multi-religious make-up,” and proposes three steps that seek to remedy this apparent malady.

The problem with his analysis though, is that it is fundamentally flawed. So flawed in fact, that it is not far-fetched to surmise that the piece serves not the purpose of curing an existing societal problem, but instead is to distort and obfuscate the real issues behind our current situation as a nation. And given the irredeemably flawed analysis, it naturally follows that his proposals are faulty as well, given that they are made based on the wrong premise.

As any doctor can tell you, a wrong diagnosis of an apparent problem can lead to faulty prescriptions in treating the same with disastrous consequences being the obvious result. His op ed therefore is fit to be seen only as a poison, and not a panacea for our woes. None of its contents should be taken or construed as a cure for the problems we face as a society, lest it fan the flames of discord between our disparate communities even further.

So what then instead, one may ask. Is it not true that Malaysia suffers from increasing racial and religious discord? Indubitably yes, but any diagnosis of the problem must be correctly identified and narrated before solutions thereto may be found.

One must always bear in mind that Malaysia as a whole has generally always enjoyed relatively peaceful relations between citizens of different ethnic background, then and even now. There is no plausible reason to suppose that relations have soured. If they have, then the origin of such discord did not start in 2009 but 40 years earlier, in 1969.

Race relations, then and now

The brazen attempt by Chinese minority based political parties in particular Gerakan Rakyat Malaysia (“Gerakan”) and the Democratic Action Party (“DAP”) during the 1969 general election to question and undermine the settlement reached between our nation’s forefathers, namely that citizenship be given to non-native inhabitants of the then Malaya in exchange for due recognition of the supremacy of Islam and Malay native rights upon this land led to the infamous incident on May the 13th of that year. Given the scale and magnitude of atrocities committed by all sides in that incident, it was thought that prevention of root causes giving rise to complications, rather than allowing the same to fester unhindered and treating symptoms when they occur, would be the better course of action to undertake from then on.

It was in this context that the existing Sedition Act 1948 was amended in 1970 to protect provisions contained in our Federal Constitution protecting the settlement reached between native Malays and non-native ethnic minorities in the then Malaya prior to independence in 1957, namely the provision on citizenship in Part III, the status of Malay as the national language and sole language of the state in Article 152, the special position of Malays in education as well as business in Article 153 and last but not least, the sovereignty and jurisdiction of the Malay rulers in Article 181. Regrettably, Islam’s exhalted position as religion of the federation, encapsulated by Article 3 of the Constitution, was left out of this equation.

It is beyond doubt that the aforementioned amendment, coupled with the arsenal of preventive detention laws such as the Internal Security Act 1960 and the Emergency Ordinances avaliable at the disposal of the government then, have contributed towards the continued safety and security of the nation as well as ensuring racial and religious harmony to prevail between its inhabitants from then until 2012 when they were unfortunately repealed.

Over indulgence of ethnic minority demands at majority expense

The disasterous turn of events was due to the fact that the ruling Barisan Nasional coalition haemorrhaged votes in the 2008 election. This led to our current Prime Minister, Datuk Seri Najib Abdul Razak to acquiesce to the demands of irresponsible quarters, such as the Malaysian Bar and foreign funded civil society NGOs such as SUARAM, among others, to repeal most of the preventive laws in the hope of recovering lost political support from the Malaysian electorate. This did not occur and the ruling coalition is in worse shape politically then it was prior to the subsequent general election in 2013.

The Sedition Act 1948 was fortunate to be the only preventive law that has survived this repeal onslaught by our then overambitious PM, and all Malaysians should be grateful for this. Otherwise our constitutional settlement would have been open to question again by those with malicious intent without sanction, leading to unimaginable consequences for race and religious relations.

But another hangover from the past remains and this is the continued existence and operation of vernacular schools. Various proposals in the 1950s were made for their abolition, but as the schools had existed for a while prior to independence, and communities were not ready yet to give them up, it was agreed that they would continue albeit for a temporary period after independence was achieved. The Razak Report of 1956 confirms this, stating that Malay, as the national language, should be the eventual sole language of all educational establishments throughout our nation, and one in which a common national identity can be based upon.

However due to the need by the head of the BN coalition, UMNO to help its partner MCA obtain and secure Chinese support, this has not come to pass until this very day. This is evident from the judgment of our former Lord President, Suffian LP in the case of Merdeka University v Government of Malaysia where His Lordship bemoaned the tendency amongst some members of the Chinese community to demand what is not theirs under our Constitution, namely the right to be educated in their mother tongue, the Mandarin language (though this itself is doubtful since Mandarin is not native to any Chinese community in Malaysia). This is quite different from having the right to know their mother tongue which is of course, protected in Article 152 of our apex law.

This among other over indulgence of minority demands has led to the slow erosion of the positions rightfully and naturally enjoyed by the Malay Muslim majority natives of this nation. Hence any proposal, if it is to be made, must take into account this, and more.

Malaysians, instead of following the utter hubris of the three steps suggested by Maszlee Malik in his opinion piece, would do well to take heed of these following steps instead.

Step 1: Respect the Constitution

The Federal Constitution is our highest law and is the result of compromise and settlement between the leaders of the disparate communities in Malaysia prior to independence. This settlement must be made known to all Malaysians and must be duly respected. The essence of the settlement can be distilled into five general principles, known as the pillars of our Constitution. They are Islam’s position as the religion of the federation (Article 3), citizenship for all based on the social contract (Part III), Malay as the national language (Article 152), the special position of the Malays and legitimate interests of other communities (Article 153) and the sovereignty and jurisdiction of the Malay rulers (Article 181).

If all Malaysians were to internalise these principles and conduct social relations based on them, then everything should be fine. For example, knowing Islam’s position as the religion of the federation itself should put paid to the preposterous idea that implementation of hudud law, which would in any event only apply to Muslims, should not be allowed on the fictional basis that Malaysia is secular. As it is now, even mere increase of the jurisdiction of Sharia courts, already lawfully existing under our Constitution, is being questioned. Is there any wonder then that religious harmony has deteriorated?

Step 2: Take stock of our geographical and historical context

Geographically, our nation is located within a region known as the Malay archipelago or locally known as the Nusantara. Historically, we learn in schools that Peninsula Malaysia was a collection of independent Malay Muslim Sultanates who implemented Islam in all aspects of public life. They were collectively known as Negeri-Negeri Tanah Melayu or the States of Malaya. Later, the British came and colonised these States one by one during the 18th and 19th centuries, and, by the admission of one of their own, namely RJ Wilkinson, stunted the natural growth of Islamic laws and Islam based existing practices by substituting their own laws for all matters except for personal laws.

Later, these States were federated and achieved independence as a federation named Malaya, later expanded with the addition of Sabah, Sarawak and Singapore and renamed Malaysia. Thus, is it any wonder that the native inhabitants of these states want their Islamic way of life back? That is what independence means, for goodness sake – the right to determine public affairs according to the native ways of the region, in our context, from the position of Islam.

Fighting these attempts by false comparisons with Britain, the United States or any other country, and importing foreign doctrines such as separation of religion and state or demanding equal treatment in education and business without due regard for our constitutional compromise is folly and just asking for trouble. Stop this, and things will be good.

This is not to say that those foreign concepts and ideas are bad in themselves. If any Malaysian agrees with them, they are always welcome to migrate to those places where the same are indeed practised. Just don’t try to bring them here.

Step 3: Actually respect others and abide by the laws, instead of being hypocritical

Malaysians, particularly (but by no means exclusively) ethnic minorities and even some Malays of the liberal and left wing persuasion, pay lip service to respecting the religious feelings of the native Muslim majority, but in practice routinely violate them.

This includes complaining about azans being too loud, building religious structures, such as churches and temples illegally on state owned land, interfering in the right of a Muslim convert to raise and educate his or her children in accordance with the Muslim faith (which the convert, being a parent of such children, has undoubtedly a right to do under Article 12 of the Constitution), erecting religious symbols without permission of local authorities thereby contravening planning permission by laws, provocatively using terms commonly known to be used by Muslims, such as the Arabic term for God, Allah, in their own non-Muslim faiths with no credible religious justification, arguing for the legalisation of homosexuality and attempting to challenge Islamic laws by openly consuming food during the holy month of Ramadan, among others.

The above is in addition to falsely and hypocritically denouncing those who bring up legitimate concerns about Malay Muslims as racist as well as ridiculing them, moaning and groaning about supposed unfair treatment by a Malay led government in social media and setting up news portals to perpetuate false narratives on the internet, and the like. These, among other reasons, is why race and religious tension in Malaysia is increasing by the day. All that is needed is for these and others to stop, and there is no need even for a second National Unity Consultative Council even. After all, no amount of councils will cure the problem if the problem is not recognised for what it is – minorities trying to subvert and suppress a majority on issues that have nothing to do with them. Again, stop this, and all and sundry will be hunky dory.

So there it is – three genuine steps (as opposed to the false steps set out by Maszlee Malik in his abovementioned article) that can be followed by all Malaysians to improve racial and religious harmony. Do your bit as a Malaysian, and get cracking on implementing them!

  • Faidhur Rahman Abdul Hadi is a member of YP
  • First published by Tanjak on 17 November 2016

Prime Minister must uphold our Constitution when it comes to public education – YP

The Young Professionals (YP) are extremely concerned by reports that Prime Minister has pledged to help build more Chinese vernacular schools for the Chinese community, as well as help relocate existing ones, at the 63rd MCA Annual General Meeting (AGM) recently (PM pledges more Chinese schools, says don’t forget come polls, MalaysiaKini, November 13, 2016).

Such a move by our PM smacks of borrowing from the populist approach of Donald Trump in the recently concluded US Presidential Elections in trying to obtain votes from the Chinese community, and is, to borrow a term widely used against supporters of the now President-elect, deplorable. The PM’s promise is deplorable by any standard because the very presence of vernacular schools in our education system is unconstitutional. YP urges its immediate rescission.

There is no issue with the Prime Minister or any other Malaysian politician promising electoral goodies in return for votes. Indeed, such is the norm in any democracy such as ours. But as citizens of this nation we are all, regardless of racial or ethnic origin, bound by the Federal Constitution as our apex law. Article 152 of the document provides that Malay is our national language, regardless of the native languages of other ethnic communities in Malaysia.

Although the same article provides that no community shall be prohibited from teaching or learning any other language, the well-known precedent of Merdeka University v Government of Malaysia has held that this does not extend to teaching or learning in such other languages. In any case, the implication is clear. Malay as our national language is to be the sole language for use in any state institution, including but not limited to those relating to education.

Given the nature of the pledge by our Prime Minister, it is perhaps worth nothing the following passage contained at the end of the judgment of our former Lord President, Suffian LP (as he then was) of the said precedent:-

“Before departing from this case, we would like to remark that it is unfortunate that there is a widespread tendency on the part not only of the Chinese to demand the establishment of this or that institution of learning as part of a campaign to win favour with the electorate. This is especially marked when a general election is looming.

An unfortunate effect of this tendency is the need to appeal to racial and linguistic sentiments and the arousing of strong emotions on the part of those whose language is being championed and equally strong reactions on the part of those whose language is thought to be threatened. It is realized that this is a legacy from pre-Merdeka days when the different races were educated in separate compartments.

Now that we have been in charge of our own destiny for 25 years (as it was then), our people should be mature enough to realise the importance as regard sensitive issues of keeping the political temperature down rather than up, they should agree to regard universities and schools as an educational rather than a political problem, and that they are a vital instrument in nation-building,”

YP notes that the above passage was written in 1982 when we were an independent nation for merely 25 years. Now after nearly 60 years of independence, the recommendation of the Razak Report made all the way back in 1956 that we should, as an eventuality, only use the Malay language, being our national language, as the sole language of instruction in all schools and educational establishment owned and operated by the state continues to be ignored at the whim and fancy of our politicians.

Worse, the Prime Minister’s pledge at the MCA AGM indicates that we are going backwards on this matter, all in the name of continued appeasement and populism of a certain segment of the population that refuses to acknowledge the importance of national unity and integration. This senselessness, where unconstitutional moves are promised in return for political support, must cease if we are to survive as a nation.

YP implores that the Prime Minister retract his above said statement immediately and pledge to uphold our Federal Constitution, particularly its provisions on our national language. YP also urges the Government to move immediately towards implementing the recommendations of the Razak Report by imposing an immediate moratorium on the opening of any further vernacular schools in this country, and come up for a roadmap for a solution acceptable by our Constitution, perhaps in the form of withdrawal of state support for such schools and educational establishments as well as their subsequent privatisation.

Sedition Act very much relevant even now – Faidhur Rahman

Much has been made of the Sedition Act 1948 and its continued existence on our statute book since our Prime Minister Najib Razak proposed to abolish it in 2012. As with almost any other contentious issue, there are those who support the abolishment as well as those against. Both have their own, equally valid justifications for why they support one side or the other, and both sides have a right to their own views.

But it is important to keep in mind that the national debate that followed the proposal concluded in favour of the Act’s retention, most probably because the vast majority of Malaysians have realised that repealing the law would be a colossal mistake, much like the repeal of the former Internal Security Act 1960 (ISA) was, along with other so-called ‘draconian’ preventive laws such as the various Emergency Ordinances as well as the Banishment Act 1959 and the Restricted Residence Act 1933. We still suffer the consequences of this erroneous move even today when we, left without effective laws to fight terrorism, are forced to live our lives in constant fear ever since new terrorist groups such as ISIS have emerged in our own backyard.

The lesson learnt was indubitably that while restrictive laws are cause for consternation and do not serve the cause of individual freedoms, any reasonable person would accept that they are necessary to serve the wider public interest, in particular those relating to the fundamental basis of the state, race relations as well as national security. In the case of the Sedition Act, all three of these concerns feature prominently. The apparent failure to realise the need to balance the two is what makes Kuching MP Chong Chieng Jen’s recent press statement on the law all the more lamentable.

Admittedly, much like the ISA was before, the Sedition Act is not perfect, and has attracted controversy due to how it has been used in the past, but this is true of laws proscribing offences of any kind, and is not in itself a reason for abolition. Flawed application equals bad law is defective reasoning, and is what led to the repeal of all the ISA as well as other counter-terrorism laws we had prior, leaving almost next to nothing in our arsenal to use against newly emergent and highly dangerous terrorist groups, leading to an embarrassing situation for our government which had to enact new laws to deal with the growing threat.

Thus, constructive, as opposed to destructive contribution to the discourse on whether preventive laws such as the Sedition Act are needed would centre on the question of not whether the Act should be repealed, but what safeguards may be imposed to balance the need for continued and effective national security against exercise of individual liberty, in this situation, freedom of speech and expression.

But instead of addressing his mind to the question on how best to achieve this balance, the Kuching MP continues to repeat the flawed argument ad nauseam that the law is draconian and has been abused, and thus must be repealed. This argument has been discredited so often, yet there are those like the MP who continue to make it.

His first excuse was alleged legal uncertainty, although he himself only earlier in his press statement sets out in clear terms what has been legally prohibited, namely questions on Part III (citizenship), Article 152 (national language), Article 153 (special position of Malays) and Article 181 (Rulers’ sovereignty) of the Federal Constitution. He does not dispute the necessity of these prohibitions, but pleads that they include political as well as legal issues.

So what? Questioning these constitutional provisions that make up our basic structure would undoubtedly be political, but that does not mean that it should be permitted. They have been agreed at our independence by our forefathers as the basis of our constitutional make up and that is all there is to it. In any event, some matters are too important to be made partisan political fodder.

Then, Chong cites a laundry list of opposition politicians and supporters that have been charged under the Act from the late Karpal Singh to Tian Chua and alleges that the Act has historically been invoked only against those critical of the government. This is, of course, a fiction.

Even a cursory reading of legal precedents involving the Act would reveal the well-known case of Mark Koding, incidentally a BN and thus government MP, being charged and convicted under the Act. Recently, other prominent figures critical of the opposition, such as ISMA president Abdullah Zaik Abd Rahman, have been found guilty of sedition and fined RM2,000.

Yet not a whimper was heard from the likes of Chong nor those within his opposition coalition regarding this. Why the double standard? If he believes a law is bad, at least be consistent in fighting it. Don’t just cry foul when allies are prosecuted under its provisions, only to keep silent when opponents are. That is the very definition of hypocrisy, a quality that unfortunately many Malaysian politicians seem to share.

Simply put, the Sedition Act 1948, much like what the Internal Security Act 1960 once did, played and continues to play a critical role in keeping our nation safe from those who would question constitutional provisions agreed upon as part of the social contract during independence, or disrupt the prevailing racial and religious harmony we enjoy.

Nowadays with the proliferation of social media, harmful and malicious commentary threatening our delicate racial fabric abounds even more, particularly in cyberspace. So what law to effectively deal with these if not the Sedition Act? Certainly not some substitute race relations law that does not take into account the peculiarities of our own unique societal landscape. As such the Act is still very much relevant even now, and Malaysia’s continued peaceful existence since ethnic relations last deteriorated in the 1960s is a testament to the Act’s effectiveness in this regard.

And while I am aware of the argument that this law has not been consistently applied, and that certain individuals alleged to be close to the government of the day have supposedly committed sedition and got off scot free, this still isn’t a valid argument in favour of the law’s repeal. It is an argument, as with all penal laws, against misuse.

And that is the mischief which must be targeted for remedy if we are to avoid the same error committed by the repeal of the Internal Security Act, namely safeguards against abuse. In any event, hasn’t our Prime Minister already done this? After all, by recognising that the rakyat desire as much freedom of speech as possible but having due regard for a need to ensure public security and racial harmony, he had the Sedition Act amended instead, removing the Act’s prohibition on questioning the government as well as administration of justice.

Yet rather than be recognised for what it is, and its recent amendments celebrated, the law continues to be bemoaned, no less than by a sitting member of parliament. This, I reiterate, is most unbecoming, given his position and his certain knowledge of events that have transpired since the proposal for repeal was first mooted by our Prime Minister. So while he calls upon our Prime Minister to repeal the law, I for one call upon him to uphold it.

  • Faidhur Rahman Abdul Hadi is a member of YP
  • First published on the Malay Mail Online and Tanjak on 31 October 2016

The blame is on you, Hafidz – Aziema Osmond

Here we go again. Yet another unsubtle argument for the suppression of free speech and expression was put forth in Hafidz Baharom’s article, If a riot does happen, I’ll blame the government (The Malay Mail Online, October 2, 2016). It seems that my beloved nation is destined for eternal repression. How could it not be when every time different parts of our citizenry seek only to peacefully exercise their right to speak and assemble per Article 10(1)(a) and (b) of our Constitution, would be supporters of draconian measures emerge to suppress this at all costs. The country was only just jolted by the call of Datuk Zaid Ibrahim for the return of Tun Dr Mahathir style authoritarian rule, and by penning the abovementioned article, Hafidz seems to follow in his footsteps. For a person purportedly known for writing articles in defence of human rights, this boggles the mind. Wonders indeed never end.

Granted, his message may seem rational enough. This is especially since few would disagree that our government has not done a proper job of governing these days. But be not misled, for in reality, few other opinion pieces published in recent times are as insidiously dangerous to the idea of liberal democracy many of us hold dear. Why, one may ask? Because in his article, what Hafidz has essentially argued for is not only suppressing the exercise of free speech but also for state sponsored repression against those who choose to exercise it.

And while he disguises this as misplaced concern for our national security, he ipso facto justifies state sponsored repressive measures as a legitimate response to those who hold views contrarian to his own. This contemptable stand runs counter to the universal ideals enumerated in the Universal Declaration of Human Rights (UDHR) and aspired to by all right thinking citizens in this 21st century. Disagree? Please, as you’ve allowed him to argue his points, allow me to explain.

But first, some contextual background. Before, when the Union of Soviet Socialist Republics (USSR) or otherwise known as the Soviet Union existed, daily life for those within who disagreed with or otherwise did not subscribe to communism, the national ideology of the state, was anything but bearable. There was no democracy, no freedom of religion, and worse of all, no right to one’s own thoughts as well as their expression.

As vividly expressed by George Orwell’s Nineteen Eighty-Four, the omnipresent state was ever watchful over divers own citizens under its rule during its 79 year existence. Controlled by the Communist Party of the Soviet Union (CPSU), the state eavesdropped upon all and sundry for signs of dissent and repressed those who dared question its legitimacy to rule. Joseph Stalin’s rule in particular was renowned for the Great Purge, where thousands of CPSU as well as government officials were indiscriminately interned, harshly interrogated, brutally tortured and arbitrarily executed.

It was no wonder then that those who lived under the oppressive rule of the USSR rejoiced when the regime collapsed nearly 25 years ago. For them, the seemingly unending draconian restrictions against free thought, speech and expression they had to endure for many long decades was finally at an end. Peoples of various nationalities living under the Soviet Union’s tyrannical yoke were finally free to think for themselves, many for the first time in their lives.

In Malaysia, we did not escape decades of authoritarian rule beginning in the early 1970s during the time of Tun Hussien Onn but strengthened during the rule of Tun Mahathir in the 1980s, where similar draconian restrictions against free speech were put in place. Who could forget, for example, the suppression of student marches through the use of the University and University Colleges Act 1971 (UUCA) and the rounding up of various activists, journalists and opposition politicians under the Internal Security Act 1960 (ISA) during the infamous Ops Lalang of 1987?

It was only in 2003 when Tun Dr. Mahathir finally relinquished power, was our constitutional and inherent right to freedom of speech given a new lease of life and was further strengthened, thankfully, by the repeal of Section 27 of the Police Act 1967 (Act 344) which required police permits before free assemblies, meetings or processions could be held nor may pass.

The great French philosopher Voltaire is famously known to have defended to the death the right of all to hold and state views that he profoundly disagreed with. But ironically and contrary to his stand as a proud liberal, rather than abide by the teachings of Voltaire, Hafidz Baharom in his above article makes a volte-face, and instead urges the emulation of the ways of Stalin and his time as leader of the Soviet Union.

While doubtless making clear his profound disagreement with Datuk Jamal Yunos’s Red Shirt movement, he unnervingly goes on to assert that Jamal’s right to organise his own protest is undeserving of the same treatment as Maria Chin’s right to organise the next Bersih assembly, Bersih 5. No, no. To allow this somehow makes Jamal a terrorist, of all things. Mere divergence with another’s point of view is condoned and accepted as justification enough for outrageously false (and not to mention highly defamatory) labelling.

Then, without citing any evidence, he throws a tantrum of riot instigations, confrontations and violence allegedly threatened against another individual. Which individual, one wonders. Could it be Maria Chin as well? Last I heard, he tore up her lawyer’s letter of demand against him and threw the shredded pieces into a toilet bowl. While this doesn’t exactly win any awards for prudent social conduct, it is still part of his right to express himself. Rude, probably yes but hardly terrorist behaviour, any reasonable person would agree. To claim otherwise is downright laughable.

But Hafidz has claimed otherwise, and he isn’t laughing. Judging by the tone of his article, he is dead serious that our government must double down on Jamal by repressing the actions of a so-called “racist hooligan” and bring about, in all haste, a complete halt to the activities of his blithely defined “terror movement”. Plainly, his view is that violence against Maria and Bersih 5 ought to be condemned, but insulting and labelling Jamal and his Red Shirts by nefarious terms with no basis in reality, as well as forcibly preventing their assembly must be allowed. No justification is offered by him for the different standards applied.

He also beseeches Umno not to emulate the German National Socialist (Nazi) but become a CPSU clone instead by taking appropriate harsh and draconian action to prevent Jamal’s exercise of his free speech and assembly. Umno President and Prime Minister Najib Abdul Razak and Umno Secretary-General and Federal Territories Minister Tengku Adnan Tengku Mansor should both strip Jamal of all his party posts and expel him from Umno at Hafidz’s behest. Better yet, maybe they should take a leaf out of Stalin’s book, and just purge him as was done to Stalin’s own police official, Nikolai Yezhov. For good measure, they should also make him an example by having him and his Red Shirts all thrown into a Soviet style gulag. This would be extremely bad for our human rights and democracy, but never mind. By Hafidz’s logic, those who think differently don’t get to have rights. This coming from a supposed Malaysian liberal. What a sorry state of affairs for our democracy.

Hafidz, you are perfectly entitled to your position that Bersih’s aims are legitimate and are limited to demanding free and fair elections, even if many others do not share this view. What you do not have the privilege of, however, is to demand our government take away Jamal’s right to disagree with and yes, organise a protest against Bersih in deference to his own view. It’s called freedom of speech and assembly, Hafidz, and is present within all thriving democracies. It is also enshrined in our Constitution and this document called the Universal Declaration of Human Rights, which applies to all, regardless if they are aligned with your view or not.

Citing an instance of past standoff where Jamal ripped away the flag of Bersih doesn’t justify your call for repression either, unless you mean for the government to respond by ripping apart Jamal himself in an inquisition style torture chamber. And neither does asking aloud how Jamal can be “left unhindered” to protest against the upcoming Bersih 5 rally, by the way. You say that he stops a democratic agenda from progressing, failing to realise that stopping him is in effect, stopping not only the progress of a democratic agenda, but the progress of democracy itself.

You also say that if a riot happens, you will blame the government and hold all the parties within it responsible. But I already hold you responsible for your call for our government to repress Jamal on account of mere disagreement with his exercise of free speech. Congratulations are in order, for by giving the government ideas on how it should repress and opress, you have made a huge contribution towards the slow ebbing away of our hard won but already precarious state of human rights. If the government decides to roll back the significant progress made in this arena especially in recent years, the blame, I’m afraid, is on you.

Education should be based on our Constitution – Faidhur Rahman

Wan Saiful Wan Jan’s article, “Let’s have more Chinese schools” (The Malay Mail Online, September 22, 2016) seemed to me rather anomalous. Responding to another article appearing in Sin Chew Daily, “Chinese schools a stumbling block to national unity?” which as he said, argued that Chinese schools are not a stumbling block to unity, he made some odd observations and thus derived faulty conclusions as a result.

He started by saying that the Sin Chew Daily article is defensive in its tone. I agree with this. The main argument of that article is actually a rehash of a tired claim usually put forth by Chinese language educationists who insist that teaching and learning in Mandarin does not hinder national unity and even somehow strengthens it.

But the writer seems to have overlooked simple logic that would cause one to ask, how can the use and promotion of Mandarin, a language the vast majority of the Malaysian population, including many of those of Chinese origin, do not understand, have no adverse consequences for unity? If a section of our population routinely speaks and writes in a language others do not, then how is togetherness achieved?

Surely the writer must also be aware that Mandarin is not even the native tongue of most Chinese in Malaysia, and its promotion at the expense of other Chinese languages such as Hokkien and Cantonese has caused considerable intra-ethnic tension between Chinese in countries without a native Mandarin speaking population, such as Singapore, Hong Kong, Taiwan and even here in Malaysia. If even the Chinese can disagree amongst themselves as to the status of Mandarin, what more when the language is used in an environment where other ethnicities are present?

It should also be pointed out both to the writer and others, that while almost every Malaysian understands the Malay and English languages, others, including Mandarin, are only understood by a minority of the population. It is not difficult to infer that this tends towards misunderstanding and division between those who speak Mandarin and those who do not, as those who do not would be handicapped by their inability to comprehend what is being communicated. This is only natural.

One may argue that those who don’t understand a language used by others should endeavour to learn it themselves, but this ultimately is an individual’s choice. Between having so little time and so many languages to learn, for practical reasons, short of knowing Malay which is our national language, as well as English as the world’s most dominant international language, there really shouldn’t be any expectation on one to learn yet other languages, although this pursuit should be encouraged.

What particularly struck me as odd about the article by the writer is the crux thereof, namely, his argument that instead of favouring Mandarin on the basis of Chinese culture and its benefits (why shouldn’t they? They are after all, Chinese and wish to preserve their culture) they should change their strategy and make the debate a national one centred on “superior quality education that is demanded and chosen by the parents regardless of race and religion,” and that more Chinese schools should be set up since “that is what the rakyat wants,”

Most people would agree that Chinese schools don’t have a monopoly on what he has termed “superior quality education”. Nor are they the preferred choice of Malaysian parents, the vast majority of whom still send their children to national schools. The writer also failed to substantiate his contentious claim that the rakyat in general want more Chinese schools to be built. Statements of fact should be proved, not merely asserted.

But beyond this, while he has provided some contextual background to his abovementioned argument by reference to the various education reports and policies issued in our country over the years (such as the National Education Philosophy) as well as stating our laws that put the same into practice (such as the Education Act 1996), he has rather dubiously omitted to mention what our supreme law, the Federal Constitution has to say about the subject matter of his article.

Article 152(1) of our Constitution states clearly and unequivocally, that our national language is the Malay language. This of course is subject to the proviso that no person is to be prohibited from teaching or learning any other language. But this does not confer on any person the right to schools or other educational institutions that use a language other than Malay as its medium of instruction, as held in the case of Merdeka University v Government of Malaysia, since teaching or learning other such languages does not include the right to teach or learn in them. In short, while teaching and learning Mandarin itself is protected, teaching and learning in Mandarin is not. This is a subtle but important difference, and notice must be taken of the same.

Further, by virtue of the same precedent, institutions of the public sector, being public authorities, are bound to use solely the national language, i.e. Malay, for all official purposes. This render vernacular schools, including those using Mandarin, unconstitutional to the extent they are state owned and/or publically funded. The Education Act 1996, to the extent that it provides for the possibility of vernacular schools, is thus similarly unconstitutional. Even the 1956 Razak Report, which Wan Saiful says is a compromise between the Barnes and Fenn-Wu reports, envisaged doing away with all vernacular schools at some point.

So why is the writer proposing a solution that is not sanctioned by, and even contravenes, our highest law? Is not our Constitution, by virtue of Article 4(1) thereof, our grundnorm and our apicem lex? And does not our national philosophy, Rukunegara, recited in schools every week precisely to foster national unity, contain Keluruhan Perlembagaan or supremacy of the Constitution as one of its principles?

The writer also made yet another suggestion in his article that flies in the face of our Constitution. This is that the Government should question the existence of Islamic schools and we should somehow be worried about their mono-ethnicity. Again, if he had bothered to peruse our supreme law, particularly Part II thereof which concerns fundamental liberties (i.e. human rights) he would have come across Article 12(2) which upholds the right of every religious group to establish and maintain schools for educating children in their own religions, and this is not limited to Islamic schools only, but cover other faith based schools, such as missionary schools. Islamic schools in particular, by virtue of the same Article, are allowed to receive state funding. This is in no doubt due to the position of Islam as the religion of the state as provided for in Article 3(1). As such, yet again, the question must be asked of him as to why he is encouraging the breach of a sacred human right, no less, and one which is protected by our Constitution?

The writer is right, however, in his claim that our education system has always been subject to the prevailing political sentiment of the day. This is the primary reason why the abolition of Chinese and vernacular schools, long overdue, has yet to take place now despite public support for such a move.

Rather than advocating moves that clearly contravene our Constitution, what he should have done was to make clear, both to his friend Mr Tan Yew Sing of the Malaysia China Chamber of Commerce as well as the writer of that Sin Chew Daily article, that while Chinese language and culture can be preserved in tandem with the promotion of greater understanding between peoples of various races and religions, the existence of Chinese schools, as schools that fail to use the national language as their medium of instruction, in reality undermine our unity by fostering an environment of incomprehension and encouraging misunderstandings in communication. They are also unconstitutional. To desire national unity, therefore, is to see to their abolition.

  • Faidhur Rahman Abdul Hadi is a member of YP
  • First published by Merdeka-Online and Tanjak on 23 September 2016 and 24 September 2016 respectively

Why infesting prison cells with vermin is clearly illegal and unconstitutional — YP

The Young Professionals (YP) express their disgust with the suggestion by the former Court of Appeal judge, Datuk Mohd Noor Abdullah supported by Deputy Minister for Home Affairs Datuk Nur Jazlan Mohamed that prisons be infested with all manner of disease bearing vermin such as mosquitoes, rats and cockroaches in order to more effectively deter crime. While YP does agree that general conditions at prisons, lock ups and other detention centres must be rendered alluring or inviting in any way given their purpose and use as places for reflection, reform and rehabilitation of inmates, such places must nonetheless be maintained in accordance with applicable international standards, and the suggestion of the former judge and deputy minister that they deliberately be made unbearable for inmates is simply appalling to say the least.

Such a move, other than inhumane for obvious reasons, are clearly illegal under the law, not least the Prison Regulations 2000 made under the Prison Act 1995, Regulation 59 of which requires that prisons be kept clean, and Regulation 55 requiring prisoners be treated with kindness and humanity. Regulation 20 of the 2000 Regulations even provide for any prisoner found to have any infectious or contagious disease or infested with vermin to be reported to a medical officer who shall take steps to treat the said prisoner as well as take preventive measures to contain any spread thereof to other inmates.

There is also section 270 of the Penal Code which imposes a jail term of up to two year and fine for those who deliberately spread the infection of any disease dangerous to life and section 278 of the same Code which imposes a fine of up to one thousand ringgit for anyone who pollute the atmosphere in any given place so as to make it noxious to persons in the surrounding vicinity. Any person who does what is advocated by the former judge and deputy minister above would certainly be guilty of committing these crimes.

Implementation of the suggestion would also amount to a contravention of the Prevention and Control of Infectious Diseases Act 1988, which, as its name suggests, is meant to prevent the spread of diseases and control them when they occur. Under section 10 of the Act, every occupant of a building infested with or anyone who keeps company with a person suspected of having contracted an infectious disease is required to be reported to the relevant authorities, failing which an offence is committed. There is also section 13 of the Act which criminalises the distribution of any infected or contaminated rodent the breach of which is punishable by up to two years jail and a fine.

The proposed measure is also quite plainly against internationally recognised human rights standards. Article 5 of the Basic Principles for the Treatment of Prisoners, adopted by the UN General Assembly on 14 December 1990, provides that, save for those limitations that are demonstrably necessitated by the fact of incarceration, all prisoners shall retain the human rights and fundamental freedoms set out in the Universal Declaration of Human Rights (UDHR). These include the right to be treated with dignity (Article 1), the right to life (Article 3), the prohibition of cruel, inhuman or degrading treatment or punishment (Article 5) and recognition of them as persons before the law (Article 6).

The principles contained within UDHR are made applicable within Malaysia by a judicial precedent, namely the case of Suzana Mat Aris v DSP Ishak Hussain and Others [2011] 1 MLJ 107, a case which, incidentally, concerns standards to be applied in the treatment of prisoners in Malaysia. In that case it was held that the deprivation of prompt medical treatment for an inmate was to subject the person to torture, cruel, inhuman and degrading treatment by default, and was in breach of the protections afforded by the UDHR. If even the omission to provide a detained inmate with medical attention quickly enough is sufficient to constitute such treatment, imagine if this suggestion of the ex-judge and deputy minister were to be implemented, which would assuredly result in an outbreak of similar cases such as this one.

Lastly there is also our own constitutional protection against violations of human rights. Article 5(1) states that no person can be deprived of his life save in accordance with law, and the right to life is wide and all-embracing, including livelihood and quality of life, as stated in the precedents of Tan Tek Seng v Educational Services Commission and Another [1996] 1 MLJ 261 and Lee Kwan Woh v Public Prosecutor [2009] 5 MLJ 301. There is also Article 7(2) which prohibits the imposition of double jeopardy, namely the punishment of any person for a convicted offence more than once. Any move to implement the suggestion of the former judge and deputy minister, thus, would be against all the above stated human rights protections afforded to prisoners and thus, unconstitutional.

YP fervently hopes that the above enumeration of the law as well as human rights principles and constitutional provisions applicable will contribute towards the former judge and deputy minister reconsidering their dreadful suggestion, and apologise in respect thereof, as well as deter those who think in similar terms.

Minister’s decision on FFM28 categories unconstitutional, denigrates the national language – YP

The Young Professionals (YP) decry the decision of the Communications and Multimedia Minister Datuk Seri Dr Salleh Said Keruak to reverse the hitherto constitutionally sound practice of the National Film Development Corporation Malaysia (FINAS) of having awards based on Best Picture for Malay language films and create a separate category for non-Malay language films, name the Best Picture (Non-Bahasa Malaysia) category for the upcoming 28th Festival Filem Malaysia (FFM) awards this September.

YP understands that the Minister has announced today that these categories will be effectively annulled by the opening of the Best Picture award to all locally-made films regardless of language and to placate national language supporters, introduce a separate category termed Best Film in the National Language, placing films made in the Malay language into a specially designated category, thus treating the language as if it is a foreign one, similar to the Academy Awards’ Best Foreign Language Film category, which is the only category of the Oscars open to non-English language films. (Communications minister ends FFM debate, says Best Picture now open to all, The Malay Mail Online, August 10, 2016).

To be clear, the Minister’s decision in no way “ends” the debate as it is clearly against both the letter as well as the spirit of our Federal Constitution, Article 152 of which clearly designates Malay, or Bahasa Melayu, as the sole national language of our nation. Per our previous press release on August 7, 2016, we have expressed the view, which we stand by, that per the National Language Act 1963/67 and the 1982 legal precedent of Merdeka University v Government of Malaysia, the functions of all governmental and statutory bodies, including FINAS, is to conduct all its affairs in and promote the use of the national language. The Minister’s decision is a marked departure from this legally mandated norm and is thus unconstitutional. It also clearly denigrates the position of the national language as a common medium of unity and for the use of all Malaysians, without regard to race or religion.

Although the Minister has said that he has taken into account the views and suggestions from all parties such as film industry players and members of the public, YP reminds this Minister that his decision should not be guided by the general wishes of these quarters only, but must always, as any executive decision must be, based on and in conformity with our supreme law and grundnorm. By deciding against the previously accepted norm, he has thus gone against this grundnorm.

The Minister’s decision is one that must be roundly and soundly condemned in the strongest terms by all Malaysians who uphold our primary document as the source of all legal, as well as legitimate, authority. YP accordingly strongly and unreservedly condemns the Minister’s decision, and urges its immediate reversal.

The previous policy of limiting awards for Best Picture for movies made exclusively in the national language while recognising non-national language local films in a separate category was already correct, and so it must remain. Whatever opposition towards such categorisation should have been met with a firm, uncompromising stand in favour of upholding the exalted status of the Malay language as our national language. Instead, there has been irresponsible capitulation on the part of the Government. This does not bode well for our future as a unified nation based on a common language.

YP also supports the position of the leading animation maker Burhamuddin Md Radzi, managing director of Les’ Copaque Production’s highly acclaimed and popular Upin & Ipin, incidentally also produced in the national language, affirming support for the previous FFM28 categorisation and his urging of youths not to neglect the critical role our national language plays in unifying the nation. (‘Upin & Ipin’ producer: Vote for new government if you don’t like Bahasa Malaysia film policy, The Malay Mail Online, August 10, 2016)

YP also lauds as spot on drama director Ellie Suriaty Omar’s claim that opposition towards the categorisation reflects, more than anything else, upon those responsible for such opposition, and that their bad faith and motives are out of sync with the widespread use of the national language in our courts, schools, governmental agencies and exams. We agree with her view that this whole episode appears to be an attempt at subversion. As such, we urge all Malaysians to reject this attempt, by writing to the Minister and demanding his decision in respect of this matter be reversed soonest, failing which, it is, in our view, incumbent upon Malaysians to boycott the upcoming FF28 scheduled for this September and explore all other options of making their opposition thereto known, including by the holding of public rallies and other open expressions of discontent sanctioned by our other laws in force.

Keep calm and uphold the national language in making our films — YP

The Young Professionals (YP) are perturbed and saddened to learn about the recent controversy following the decision of the National Film Development Corporation Malaysia (Finas) to segregate films into Bahasa Malaysia and non-Bahasa Malaysia categories at this year’s 28th Malaysian Film Festival (FFM28) together with the Malaysian Film Producers Association (PFM). We understand that local cinematographer Mohd Noor Kassim has withdrawn his participation in the event, citing racism as a reason for the same. He has further pledged to return his trophies won at previous Final film festivals, it seems.

Meanwhile, local actor Afdlin Shauki has informed the public via his Instagram account that he will be joining the boycott, backed by corporate figures such as CIMB Chairman Datuk Seri Nazir Razak, AirAsia Chief Executive Officer Tan Sri Tony Fernandes and Datuk Jurey Latiff Rosli of the Association of Malaysian Filmmakers (Gafim).

As rightly pointed out by FFM28 chief jurist Nancie Foo (who, by the way, is non-Malay), Bahasa Malaysia (or rather, Bahasa Melayu, since this is the term used in our laws) is our national language per Article 152 of the Federal Constitution. It cannot be stressed enough that legally, use thereof is compulsory by all public bodies for official purposes, i.e. anything and everything done by the Government and all its branches (executive, legislative and judicial) and its ministries, agencies, offices as well as any statutory bodies, in connection with and in pursuance of the purposes of such bodies, for example in areas such as law and education. This is further reinforced by the National Language Act 1963/67.

Since Finas is a statutory body established by the Perbadanan Kemajuan Filem Nasional Malaysia Act 1981, it is legally obligated to conduct all its business in the national language, such language being the Malay language. This is clear from the implications of the 1982 precedent of Merdeka University Berhad v Government of Malaysia. In that case, Merdeka University’s application to set up a higher education institution using Chinese as the medium of instruction was rejected as, although Merdeka University was a private corporation, the institution it desired to set up would exist by virtue of and subject to the Universities and University Colleges Act 1971, and thus a public body for an official purpose.

It was held that all public bodies for official purposes must use the national language in their organisation. Finas is no different, being a statutory body established under the abovementioned 1981 Act. Thus, YP considers that, all said and done, Finas, by promoting the Malay language via the language segregation of films nominated at its FFM28 event, is, in the eyes of the law, merely discharging its legal obligations under the Constitution.

Challenging Finas in this discharge, in our view, amounts to challenging the position of the Malay language as our national language per the Constitution, and is thus caught by section 3(1)(f) of the Sedition Act 1948 as to what amounts to sedition. YP therefore strongly urges all parties who oppose Finas’ move with regard to promoting the Malay language to cease doing so, or risk being on the wrong side of the law.

This aside, it dismays us that after more than 60 years of independence, various quarters still not only fail to understand the exalted position of the Malay language as our national language, and indeed, our unifying language without regard to race or religion, but see fit to question the position of the same.

Mohd Noor Kassim postulates that in boycotting Finas’ film festival and returning his previously won trophies, he is able to send a message to the national film body that “racism” should not be tolerated in our local film industry. Clearly he fails to understand the basic meaning of the word racism. Racism, in its ordinary sense, is defined as seeing other races as inferior to one’s own. This is hardly the case with the segregation of films according to language, which has nothing whatsoever to do with race. Further, accusing anyone or anything as being racist is by its very definition, a serious matter. Allegations of racism should not be made on a whim, for if false, can clearly amount to defamation on the part of the one accused of being racist.

The Malay language, being the national language, is not for the exclusive use of those of Malay ethnicity, any more than the English language is with regard to the British. As English unites us internationally amongst the community of nations, the Malay language unites us as nationally as Malaysians. It is often said that while not every Malaysian understands English, Chinese, Tamil or other vernacular languages, every Malaysian understands Malay.

Further, it must be borne in mind that P. Ramlee’s famous Malay language films of yore, were produced by Ranme Shaw, who was non-Malay. Malay Film Productions Ltd, under which P. Ramlee directed and stared in most of his movies, was a wholly owned subsidiary of the Shaw Brothers, who are internationally known for their prominent role in the development of Chinese cinema, both back then as well as today. Most, if not all, of the movies and all associated intellectual property rights connected with his films, are still owned by the Shaw Brothers, who are now based in Singapore.

In theory, were any of P. Ramlee’s classics more current and they were based in Malaysia instead of Singapore, they would be able to submit such films as entries in FFM28 and these would be within the main category of Best Picture reserved for national language films as the categorisation is based on the language of the film, not the race of its producer.

Likewise, Malays, should they desire, are free to make movies that are not in the Malay language and these doubtless would go under the Best Picture (Non-Bahasa Malaysia) category, so Mohd Noor Kassim’s claim that the categorisation leads to racial polarisation and “Malays unable to compete with non-Malays” and Afdlin Shauki’s assertion that it promoted more “segregation” are ludicrous and without any basis whatsoever. It is, as Nancie Foo rightly pointed out, racialisation, no less.

Categorisation of films according to language is also by no means exclusive to Finas. The Academy Awards, better known as the Oscars, which are awarded by Finas’ American counterpart, the Academy of Motion Picture Arts and Sciences (AMPAS) only accepts American movies in the English language for all its categories, with only one category reserved for non-English films, namely the Academy Award for Best Foreign Language Film. This is in spite of the US not having designated any language, even English, as its national language within its Constitution or any other of its laws.

We therefore urge all right thinking Malaysians, both Malay and non-Malay alike, to remain calm, reaffirm their shared national identity and say no to the racialisation shown by the likes of Mohd Noor Kassim, Afdlin Shauki, and others by rejecting their call for the boycott of FFM28. Malaysians will do this best by collectively demanding that they end their actions and apologise to Finas and all others affected by the whole episode, for which they have only themselves to blame. We also urge the reaffirmation of our Federal Constitution and its provisions, particularly Article 152 on the Malay language as the national language and our language of unity without regard for religion or race.

We understand that the Communications and Multimedia Minister Datuk Seri Salleh Said Keruak has said that he will look into the matter. YP believes there is no need for him to do so. The issue must be resolved in favour of the Malay language’s continued status as the main language for all Malaysians per the spirit of our Constitution, and we are confident that Finas, despite being challenged over the categorisation of films at the FFM28, is able to stand its ground on this and that Malaysia as a nation will be able to see through the hollow claims of those mounting such a challenge.

Lamenting misrepresentation of the NSC Act — Faidhur Rahman

It saddens me that although the National Security Council Act 2016 (“NSC Act”) has been duly passed, gazetted and came into force last 1 August, it continues to receive flak from various quarters, local as well as international. The former Opposition leader’s filing of an originating summons to declare the NSC Act unconstitutional struck me as particularly bizarre (Anwar files suit to declare NSC Act ‘unconstitutional’, stop council, Malay Mail Online, August 3, 2016).

While I have no comment on the main thrust of that application, i.e. the contention that Article 66(4) of the Constitution is unconstitutional, I note that the same Malay Mail Online report quoted several other PKR lawmakers including Batu MP Chua Tian Chang, Subang MP R. Sivarasa and Padang Serai MP N. Surendran as saying that it was ‘an inevitability that the law would be used, as there was no reason to enact a piece of legislation if there was no intention to use it.’

Contrary to their claim, there are laws on the statute book that have never been used. The Public Order (Preservation) Act 1958 (POPA), for example, which is, as I had pointed out in an earlier article, very much the same as the NSC Act in that it too, allows for the proclamation within any area a state of danger to public order much like the declaration of a security area under the NSC Act. But yet I can find no instances in which POPA has ever been used in all its 68 years (and counting) in force.

Security areas were also able to be declared under the repealed Internal Security Act 1960 (ISA). But while they were certainly declared, no party appears to have ever objected to them. The only concern ISA detractors ever had was detention without trial under its provisions. They seemed content with all the other parts of the now repealed law, including declarations on security sectors.

Many quarters have expressed the concern that this kind of power shouldn’t be in the hands of the Prime Minister as, according to one Member of Parliament, N. Surendran, there is a reason why only the King has the power to declare security zones under Article 150 of the Constitution or the repealed ISA, and it is ostensibly to prevent abuse of executive powers and safeguard fundamental liberties (MP: There’s a reason why only Agong should have power to declare security zones, Malay Mail Online, July 28, 2016).

This kind of reading of the law clearly departs from the clear wording of Article 40(1) of the Constitution, which provides that in the exercise of his functions under the Constitution or federal law (and this includes the repealed ISA and Article 150 of the Constitution), the Yang di-Pertuan Agong shall act in accordance with the Cabinet or of a Minister acting under the general authority of the Cabinet, except as provided by the Constitution. This exception concerns only matters relating to the appointment of the Prime Minister in Article 43 of the Constitution and incidental matters, no more, and certainly does not involve any declaration of the sort envisaged by the repealed ISA or Article 150. So any exercise of power purported to have been done pursuant to the ISA or Article 150 would have, in actuality, been effectively of the Cabinet’s doing.

Further, were the MP to be correct, then surely the provisions of POPA must be worse, for unlike that of the NSC Act it is not the Prime Minister who makes a proclamation under POPA, but the Minister for Home Affairs. And unlike the Prime Minister, who must consult the National Security Council, this Minister has sole discretion under subsection 3(1) of POPA. Under subsection 3(6), this power can even be delegated further downwards to any Menteri Besar or Chief Minister of a State!

All this and more, including explicit allowing of the use of lethal weapons to disperse assemblies (as contained in subsection 5(2)) contained in an Act of Parliament enacted on 5 December 1958, just over a year after our Federal Constitution came into force on 31 August 1957. Are the present PKR lawmakers now saying that lawmakers of the time (which included our forefathers such as Tunku Abdul Rahman, Tun Tan Cheng Lock and Tun Sambathan, amongst others) clearly did not understand the Constitution nor its provisions, even though the same had been newly enacted back then? To suppose so would be absurd indeed, and would be a thoroughly contemptable questioning of their collective wisdom.

Detractors of the NSC Act should really ask themselves this question: If I care so much about the liberties of others, and this is the reason why I oppose the NSC Act, then why wasn’t I aware of or opposed to a fundamentally similar law that has been in existence for the past 68 years? Also, why am I concerned about a concept (declaration of security areas) that existed and was used under a previous law (the ISA) without objecting to the same?

The answer would seem to be in that these sort aren’t particularly concerned whether the people enjoy liberty after all, hence the misrepresentation of the NSC Act by them. Once again, pure partisan politics, and not genuine concern for the rakyat, is at play, and as usual, the rakyat has fallen victim to these politicians.

These unscrupulous politicians, as well as their allies, in particular those who sit on the executive committees of certain statutory bodies supposedly committed to human rights and impartial championing of justice without fear nor favour, but at a time when the people need clarification on the NSC Act provisions and similar related laws, choose to maintain a deafening silence in relation thereto.

Our response to the Bar Council’s NYLC – YP

The Young Professionals (YP) refer to the response of the Bar Council National Young Lawyers Committee (NYLC) chairman Khaizan Sharizad Ab Razak published by the Malay Mail Online on July 25, 2016 to Kee Mohd Thariq’s article, Steven Thiru shouldn’t pretend that he cares about young lawyers (Malay Mail Online, July 19, 2016) on the pending amendments to the Legal Profession Act 1976 (“LPA”) to be tabled before Parliament in October.

First of all, it cannot be stressed enough that the proposed amendments to the LPA in current form are mere proposals with nothing yet set in stone. It may yet be the case that the amendments will undergo further changes, some or all of which might eventually be acceptable to the Bar Council and NYLC alike. Given this fact, NYLC’s hysterics over the article by our member, Kee Mohd Thariq, as can be clearly gleaned from the tone of their response, is rather overdramatic. We urge the NYLC to argue their position in a dispassionate manner befitting the dignity of the Malaysian Bar, rather than resorting to playing up imaginary fears.

Second, the article in itself, howsoever read, can in no way come close to being a personal attack on the Malaysian Bar President as the NYLC puts it. It is in fact an honest appraisal of the President’s failings in respect of the legal profession, particularly with respect to young lawyers. We lambast the NYLC for the baseless allegation, which we believe to be unwarranted.

Thirdly, as Kee Mohd Thariq is a member of YP and wrote the article in that capacity, YP believes that it is incumbent upon ourselves to respond on his behalf to the allegations made in the NYLC response, which we, to borrow the expression used therein, are similarly constrained to believe border on misinformation, and thus have similar adverse implications for the wider public. Thus, the following paragraphs constitute our rebuttal to NYLC’s response on a point by point basis, and where necessary, we have elaborated further on additional issues of interest mentioned within Kee’s article which the NYLC has failed to respond to:-

  1. Bar’s partisan stand on issues of the day

The view that the Malaysian Bar dabbles in partisan politics are far from speculative or a mere empty claim as implied by the NYLC, but has been proven in recent times by the occurrence of events such as last year’s infamous Press Release made by the former Bar President, Mr. Christopher Leong, in which he alleged “persecution” of Datuk Seri Anwar Ibrahim after his conviction and sentence for sodomy was affirmed by the Federal Court at the time, a statement which, admittedly, was issued before the grounds of judgement of the said court was even available to be read by the public at large, including the Bar.

Such conduct clearly impugned upon the competency of the Malaysian Courts to adjudicate matters and brought the administration of law and justice in Malaysia into dispute. Despite the huge implications surrounding this huge error on Mr. Leong’s part, regrettably, neither the former Bar President nor the Bar Council apologised despite more than 100 members of the Bar urging them to collectively do so, and they continue to refuse to do this. This particularly manifest action of the Bar Council indicating clear partisanship on its part is thoroughly unbecoming, unprofessional and is the source of continued embarrassment for members of the Bar who believe in impartiality, decency, credibility, proper decorum and standards of conduct. It has become a black mark on the standing of the legal profession in the eyes of the Malaysian public.

There is also the highly unprofessional conduct of the current Bar President, Mr. Steven Thiru in his response to two well-known corruption investigations (one of which has entered the prosecution stage) affecting both sides of the political fence. Vide three Press Releases dated 8 July 2015, 22 March 2016 and 11 July 2016 respectively, Mr. Steven has essentially framed two different standards of accountability for politicians holding public office depending essentially on which side of the fence they stand.

While Datuk Seri Najib Abdul Razak, our Prime Minister, must take an immediate leave of absence without any preconditions pending the completion of investigations into the alleged improprieties surrounding 1MDB, the Bar Council has seen fit to opine that the Chief Minister of Penang state, Lim Guan Eng, not only need not have done so in the absence of any “strict legal requirement” but is now even totally absolved of even any moral obligation to do so as the prosecution stage has commenced, never mind that there is no conviction or acquittal yet! Double standards indeed.

Although we believe that everyone is entitled to their own personal views on political matters, such views should not be projected unto the Malaysian Bar. The Bar is a collective of many different minds and personalities and its President should know better than to use his position as a platform to air his own personal views.

Many members of the Bar as well as those of the wider public at large are aware of these occurrences, as well as many more on the part of the Bar Council, and this is what fuels the perception on the partisan leanings of the Bar, and certainly not “the continued allegations of those such as Mr Kee,” This kind of blatant partisan conduct on display by the Bar is certainly not sanctioned by our Constitution, and for the NYLC to make an empty reference thereto and simply dismiss this thoroughly valid and substantial concern, we regret to note, is an insult to the collective intelligence of those who caution against this, for the benefit of the Bar’s own credibility and the right of the general public to an unbiased legal opinion alike.

  1. Increase of quorum for Bar AGMs

Contrary to the claim of the NYLC that Kee Mohd Thariq fails to appreciate the history behind the AGMs of the Malaysian Bar, he and indeed the rest of YP have done our research thereon, and we find that Mr. Steven Thiru’s statement claiming that increasing the current quorum for AGMs of the Malaysian Bar from 500 members to 4,000 renders the Bar Council’s effective cession is not only preposterous, but also incorrect. There is precedent, prior to the 2006 amendment to the LPA establishing the current quorum, indicating that this higher number is indeed achievable, per the reconvening of the 59th AGM of the Bar back in 2005, where 3,027 members attended thereby ensuring quorum was reached. This was hailed by the Bar President at the time, Yeo Yang Poh, as vindicating the ability of members to rise to the occasion and The Star’s news report on the same at the time is archived right at the Malaysian Bar’s own website. If members of the Bar rose to the occasion back then, there is no reason why they cannot do so again.

But interestingly, this precedent was never alluded to by Mr. Steven Thiru nor by the NYLC in their response to Kee’s article. Further, the notion that the Bar Council will somehow close shop as a result of a lack of quorum is in contrast to the current Bar President’s assertion as reported in the Malay Mail Online on July 15, 2016 that the highest attendance the Malaysian Bar has ever secured in its history amounts to a measly 1,906 members. Why the discrepancy? Kee omitted reference thereto in his article, as it was thought appropriate as well as considerate, to allow Mr. Steven as the Bar’s President the opportunity to explain this incongruity, but alas, disappointingly, not only has he failed to do so, but it appears that the NYLC wishes to perpetuate this myth on his behalf.

  1. Foreign investors and the Bar

That investors, unlike as with the judiciary of a nation, do not care whether a legal professional body such as the Malaysian Bar is, as a whole, independent or otherwise is pretty much accurate, and it is disingenuous of the MYLC to throw into the mix legal due diligence undertaken by individual or groups of lawyers, duly hired by investors based on solely their own unique professional competencies, abilities and circumstances, and not their viewpoints. This is obviously an attempt at obfuscation.

Legal due diligence by lawyers does not have the goal of holding governments to account – this kind of diligence is undertaken by and is the role of members of parliament in a democracy, and is not the duty of privately hired legal help. Legal due diligence, in reality, is merely an inquiry into the legal and regulatory compliance of entities such as corporations, societies and other bodies corporate of interest and/or concern to the investor.

Further, investors have control over and direction of any legal due diligence undertaken by lawyers, unlike as is the case with courts and tribunals. So while the latter must be independent to ensure fairness in decision making affecting such investors, the former, do not. The NYLC’s conflation of two very different types of due diligence suggests deliberate muddying of their respective divergent roles or a lack of understanding of our national legal framework.

  1. Elections to the Bar Council and State Bar Committees

We regret yet again a misrepresentation by the NYLC this time on why exactly movements such as Bersih and the Malaysian Bar by extension support the abolition of postal votes in respect of general elections. These are in no part due to, as the NYLC puts it, the Election Commission making the criteria unduly narrow, overly bureaucratic and failing to widen the franchise. It is because the postal votes are and indeed have been subject to tampering by officials in charge of tabulating the votes, as can be gleaned from the statements and resolutions of these organisations opposed to postal voting, issued time and again by them.

Likewise the same concern is had with respect to elections to the Bar Council and, as postulated by the Attorney-General Tan Sri Mohamed Apandi Ali in his article published by Berita Harian on July 4, 2016, 50 votes cast during the elections held to the Bar Council for the 2007/2008 session were held to be fraudulent and yet nothing was done, and the continuing inaction in this regard by the Bar, means that this fear is not unfounded.

The disquiet amongst members is further compounded by the staunch refusal of the Malaysian Bar (unlike Election Commission officials) to allow independent third party monitors to observe live counting of the votes, and subjects candidates and their representatives the ability to do so only vide a pathetic live video feed, and even then after executing a letter of undertaking, which is not a legal requirement in the LPA or any other written law. The act of the Bar in cutting the live feed in response to one candidate, M Reza Hassan’s, refusal to sign the undertaking and barging into the room where the feed was shown during the tabulation of votes for the 2014/2015 session is cause for further alarm in this regard.

The NYLC’s contention that to ensure free and fair elections the current system must remain, cannot be further from the truth. There is simply no accountability. There are no checks and balances. The current postal voting system is the furthest thing from free and fair. Just imagine: the Bar Council themselves are the one counting the votes unsupervised!

  1. Representation of young lawyers within the Bar

Unlike evidently the NYLC, we do not have access to the amendments to the LPA as presently proposed, and cannot verify for ourselves NYLC’s claim that a member will have less influence on the outcome of the elections if they are enacted, and neither can anyone else. Are we expected to take this claim at face value?

But in any event, free and fair elections can only come about by one method of voting – that of secrecy of vote ballot papers cast in ballot boxes situated in polling stations, as is the case with general elections. This need not involve high costs – the existing offices of the State Bar Committees can serve as polling stations, and a designated day or number of days can be set in order for members to come and cast their ballots, subject to the same requirements practised in a general election i.e. registration and safeguards against double voting such as by requiring the use of indelible ink.

This method of secret vote by ballot, and not by postal votes delivered to the Bar Council or, laughably, by show of hands for State Bar Committees as is practised currently, ensures greater reliability compared to the present system of allowing just about anyone to return a postal ballot within a month’s time frame. In fact a demonstrably successful running of this system by the Malaysian Bar could serve as an example and catalyst for Election Commission officials to mend their ways in the conduct of general elections more than any protest or rally ever could.

  1. Contribution of young lawyers

While Kee and other members of the Bar with YP are grateful that section 46A(1)(a) of the LPA that disqualified members of less than seven years’ standing from serving in the Bar Council and State Bar Committees is no more, one right move by the Bar in this regard does not excuse a history of injustices perpetrated upon young members of the Bar by the Bar Council whether successful or otherwise.

For instance, while we commend the Bar Council for its support leading to the repeal of the LPA section mentioned above, we are also mindful that it is the same Council who not too long ago, also proposed that the establishment of new law firms be limited to members of at least seven years’ standing as well. Thankfully this proposal was shot down in a past AGM, in no small part due to the efforts of young lawyers in opposing the proposal back then.

The NYLC is right that young lawyers are the vanguard of the Malaysian Bar. Being the future of the Bar, it is their responsibility therefore not to parrot the words of or defend the actions of the Bar Council or its members as they do with their response to Kee’s article, but to act as a check on the Council’s excesses by genuinely making known the concerns of young legal practitioners and to rebuke the Council accordingly when its members patronise young lawyers the way they do currently.

  1. Meritocracy or representation?

Standing for office in the Bar Council is as much about representation as it is about meritocracy, and perhaps even more so. If the amendments result in permanent places on the Council for those of less than 10 years’ practice, thus ensuring that the concerns of young lawyers are heard within the Council and their needs duly met, we see no reason to object to the same.

Besides, if merit were the sole criterion in running for office, then all concerns and interests of different segments of the Bar membership, which is broad based consisting of members of different classification based on not only age but race, religion, gender and the like, will fail to be addressed by the Malaysian Bar and this would result in widening inequality between Bar members based on those classifications. An amendment taking into account age, as well as other concerns, would reflect the spirit of Article 8 of the Constitution affirming equality before the law and the prohibition of discrimination on the criteria set forth in Article 8(2) specifically.

  1. CPD Scheme

The imposition of the Continuing Professional Development (CPD) scheme reflects in many ways the failure of the current system of administration practised within the Malaysian Bar. Having tried to impose the scheme for many years at each AGM but failing to muster support, the Bar Council has sought to persist with its introduction, apparently refusing to take no for an answer, and in its latest incarnation, tabled before the recently concluded Bar AGM held earlier this year, the scheme will apply progressively, affecting only young lawyers called to the Bar after 2011, being some 6,000 members of the Bar.

Yet out of some 700 members of the Bar who attended that AGM, some 300 had left earlier before the debate and vote was held on the said motion, and out of 589 members left voting, the motion was carried 295 to 294, in short, a mere 1 vote decided the fate of all 6,000 young members who are to be forced to attend this scheme or face having to pay a hefty fine of RM500. The NYLC’s endorsement of this travesty betrays its lack of respect for the principle of democracy that is a hallmark of decision making practised within this country, as enshrined in our Constitution.

How can any self-respecting body seeking to govern its 17,000 members, make decisions based on meetings attended by a mere 500 of these members, when these decisions affect all or large portions of other members? This is precisely why the quorum needs increasing – to make the attendance and vote more democratic, representative and in accordance with contemporary situations and needs. It is the responsibility of the Bar Council to make this quorum work for the benefit of all Malaysian Bar members, as it has in the past and can do so again, if it just stops moaning and immediately embarks upon the task at hand.

  1. Bar’s failure to uphold human rights

The NLYC has failed to respond to Kee’s mention of an earlier article written by another member of YP, Faidhur Rahman Abdul Hadi, titled Malaysian Bar decision making process in serious need of reform (Malay Mail Online, July 26, 2016), for which he has received letter from the Bar’s secretariat reprimanding him regarding the same for disclosing to the public at large Malaysian Bar AGM proceedings (despite there being no law to the contrary of this) and warning him not to do the same again, in total denial of his freedom of speech and expression pursuant to Article 10(1)(a) of the Constitution. If the Bar Council supports young lawyers, as the NYLC postulates, the Bar Council would not have issued such a letter. This makes a mockery of the Bar’s supposed reputation as a defender of human rights. Even the contents of the article, which touched upon the human rights implications of the CPD scheme, was all but ignored.

While it is clear that while voluntary learning schemes should be provided and attendance thereon encouraged, making the same compulsory for members amounts to none other than forced labour, and is a violation of fundamental liberties, in particular Article 6(2) of the Federal Constitution, Article 4 of the Universal Declaration of Human Rights (UDHR), Article 8(3) of the International Covenant on Civil and Political Rights (ICCPR) as well as the International Labour Organisation (ILO)’s 1930 Forced Labour Convention and 1957 Abolition of Forced Labour Convention. It is also arguable, for the most part based on the discourse present at the recent AGM suggesting that young lawyers are somehow in need of a compulsory learning scheme due to their supposed unemployability and inability to practice as counsel, that the scheme also amounts to degrading treatment of young lawyers, which is prohibited by Article 5 of the UDHR and Article 7 of the ICCPR.

Rather than be concerned for Faidhur’s right to speak up as a young lawyer or even the welfare and rights of many of the 6,000 young lawyers about to be penalised unnecessarily for being forced to attend a scheme they neither have any interest in or desire to be a part of, the NYLC has chosen to defend the Bar Council’s action in the flagrant disregard of an individual’s free speech rights and partake in the commission of what potentially or at least arguably constitutes one of the most systematic violation of human rights perpetrated in Malaysia committed by a body against its members in recent times, and against the ban on forced labour at that. Thus Kee, as well as other young members of the Bar can be excused if they are not impressed by any call to provide suggestions and input to address the issues faced by members of the Bar internally by joining any Malaysian Bar or State Bar Committee. The administration of the Malaysian Bar is in such a bad state that only external pressure, not internal participation, can result in meaningful change and it is to that end the Malaysian Bar must be reformed.

  1. Bar’s selective view of what amounts to justice

It is odd that the NYLC considers employee and consumer rights mere party political issues, but the welfare of political party leaders such as Datuk Seri Anwar Ibrahim and Lim Guan Eng are not. That the former are considered non-issues while the latter are, speaks volumes about the misplaced sense of priorities the Bar has, and its failure to appreciate the true meaning of the terms administration and justice, or even the meaning of the term justice as used in section 42(1)(a) of the LPA. This would suggest that an amendment is needed to clarify what is meant by the term used in section 42(1)(a) of the LPA as well, which unfortunately, isn’t included in the proposed reforms forming part of the proposed LPA amendments to be tabled in the coming months.

  1. Independence of the Bar

While the Bar is statutorily bound to make decisions free of external influence by virtue of section 42(1)(a) of the LPA as supported by principle 24 of the of the Basic Principles on the Role of Lawyers agreed in Havana, Cuba in 1990 and by the UN Human Rights Council in 2015, the NYLC conveniently forgets the existence of section 42(1)(l) of the same law, which states that the Malaysian Bar must “promote good relations and social intercourse amongst members and between members and other persons concerned in the administration of law and justice in Malaysia,” as well as principle 25 of the Basic Principle on the Roles of Lawyers, which states that “Professional associations of lawyers shall cooperate with Governments to ensure that everyone has effective and equal access to legal services and that lawyers are able, without improper interference, to counsel and assist their clients in accordance with the law and recognized professional standards and ethics,”

This would mean that the appointment of two (2) Government representatives in the Bar Council is not a limitation on the independence of the Bar (notwithstanding that the Bar is in fact not independent even as currently constituted) but in pursuance of greater cooperation between legal practitioners and other bodies concerned in the administration of justice, which necessarily includes the Government.

  1. Conclusion

While the NYLC takes a myopic and jaundiced view of the proposed amendments to the LPA to be tabled this October, we at YP remain positive as to the outcome of the amendments, which would clearly enhance democracy, ensure better representation and more reliable and transparent methods of voting, thus benefitting young as well as senior members of the Malaysian Bar alike. YP thus stands with Kee in support of the proposed reforms, and calls upon all affected parties to uphold the speedy passage and implementation of the same at the next session of the Malaysian Parliament.