Friday, March 20, 2015

PAS and the hudud imbroglio


PAS’s folly - awareness and containment

(From Malaysiakini)

COMMENT In the introduction of the Kelantan hudud bill its architect declared that those who question whether the legislation would bring in equal justice are “liars and immoral”.

This unbecoming language is what one expects of a fanatic dictator, rather than a genuine democratic leader. It speaks to the decay in the political fabric of Malaysia that is coming from leaders, who have lost the plot in having a national consciousness and the broader decline taking place in democratic governance. Given the passage of the Kelantan hudud bill, what are the likely political implications that will evolve from this measure?

Some political parties will begin the politics of containment, while others will fan division and will continue to use hudud for political gains. As of now, it is important to remember that no hudud measure will take effect. They are all measures on paper.

With respect to those who favour these measures, on many levels hudud does not holistically reflect the ideas of justice embodied in Islam or any faith for that matter and brings to light serious questions about fairness and administration of the rule of law for all of Malaysia’s citizens.

The stoning, chopping and whipping urged in the enactments are now threats over the public without adequate protections; they make up the politics of fear that has been deeply engrained in the Malaysian political landscape.

No implementation does not mean that there measures are not unimportant. Quite the contrary. The people of Kelantan in particular will be hurt economically by the bill, as its leaders across the political divide failed them in thinking holistically about their development.

Real questions can be asked about priorities and timing, namely whether Kelantan in the wake of the floods should be introducing these measures. Questions about fairness also can be asked about who will be potentially affected by these measures, those who engaged in corruption that contributed to the flooding or ordinary citizens.

These are beyond the issues of minority rights, religious freedom and the rights and protections of the constitution that emotionally divide the country in views.

There will be other important political tests ahead as well. Unlike in the two previous pieces, this piece looking at the broader political consequences of the passage of the bill yesterday. The fluidity of Malaysian politics will create opportunities ahead. The hudud issue will likely only remain a weapon of division if national leaders continue to wield it as one.

Sharing blame - a missing ‘vote of consciousness’

In opting for a touted ‘vote of conscience’ for Umno members in Kelantan, the Najib Abdul Razak government did not lead. In fact, the Najib administration effectively took the stance of allowing the reintroduction of Kelantan hudud law to move forward without opposition.

This was driven by Najib’s weakness, not strength. It will feed extremist religious divisions and make the task of governing Malaysia’s multi-ethnic mosaic more difficult. Najib’s inaction speaks to his failing leadership as prime minister and as the leader of Umno.

It is sadly not the first time when a divisive issue emerged and the PM went missing. Najib may not be able to survive in office until GE14 and his inaction on the hudud law will only make his struggle for survival in office harder.

Najib’s weak leadership over hudud does in fact have damaging consequences beyond himself. By most measures, Malaysia’s position in the region economically and politically has taken a serious beating in the last year, from airline disasters to the recent poor performance in the stock market caused by the shocking 1Malaysia Development Berhad (1MDB) scandal.
The Kelantan hudud bill will add to these negative perceptions, and hurt the country by discouraging investment and reinforcing the view that the country does not effectively offer protections in the rule of law.
To date, every country or region that introduced hudud - all in political efforts to shore up political legitimacy - has suffered an economic and political backlash. Malaysia does not have the resources of a Saudi Arabia and Brunei to weather yet another storm as effectively.

For Najib, there will be two tests ahead for the hudud bill. The first will be whether the Umno leadership will move ahead with implementing hudud legislation at the national level. PAS with less than 10 percent of the parliament do not have the numbers to go ahead. Umno will be the national driver.

Umno’s hudud partnership with PAS is driven by the goal of destroying the opposition and PAS in particular. Of late, the actions of the Najib government have repeatedly shown an apparent willingness to carry out actions that damage the country to hold onto power.
A national constitutional amendment allowing hudud is supposedly currently not on the cards, despite PAS ulama grandstanding, but given the climate of crisis and weakness that surrounds both Malay parties and the apparent void of national statesmanship leadership of Najib’s government, not to be ruled out.
The second test is whether Najib will direct its members to follow a ‘vote of consciousness’ rather than one of ‘vote of conscience’. This is a vote that at its core gives all Malaysians confidence in their place in the country and faith in their constitution. It is not one that adopts the practice of the ‘politics of tyranny or the majority and punishment’ carried out in the supposed name of democracy by the conservative PAS ulama.

Whether Najib will be conscious enough to provide wise national leadership in his politically beleaguered state is unclear. One should not underestimate the betrayal, fear and anger that many Malaysians across faiths feel about the passage of this bill that divides the country.

High costs of Umno primacy and insecurity

The political effects of unanimous support for the Kelantan hudud bill goes beyond Umno. It was not just Pakatan that was betrayed by its coalition partners, the same happened to the parties within the BN. Umno has been adopting a primacy for some time, which has deepened post-GE13.  

Gerakan, MIC, MCA and other component parties in East Malaysia will all have to come to terms with this act of Umno and conservative PAS ulama political partnership. They have to come to terms with the fact that they are also allied with a party that supported hudud.

The Kelantan hudud bill will have ripple effects from the cabinet to the Sarawak elections. The pressures inside the BN component parties is there, and they face the same problem as Pakatan partners do over the hudud issue. The glue that keeps Barisan together is power and money, but there has been a similar sense of betrayal at play.

As discussion of the bill evolves, expect pressure within the BN to rise, with Najib becoming the target of these frustrations. He failed to protect the component parties within the BN. A key test ahead will be how the component parties manage in the shadow of Umno dominance.

Where that pressure will be most felt will be is in East Malaysia. Umno will now have to face the music in Sabah, and the vote yesterday will assure that in the short term Umno is not entering Sarawak. But, it is hard for East Malaysians to distance themselves from the action of their fellow party members in Kelantan, as they are of the same party.

They politics of containment have already begun in East Malaysia and they are coming on less reception ground. Since before 2013 there has been a powerful wave of federalism taking root in East Malaysia and this will likely deepen.

Another key test ahead will be the how Umno can convince its East Malaysian partners to work with them, when this Umno ‘vote of conscience’ showed a lack of consciousness of genuine national leadership of all of Malaysia’s citizens.

Pakatan separation inevitable, not irrevocable

The main immediate focus however is understandably the opposition, the coalition and individual parties. It was PAS conservative ulama intention to break up Pakatan, but they and their hudud partnership with Umno is not exclusively responsible for the opposition coalition’s strains.

As I have written elsewhere, the causes of Pakatan’s problems cannot be boiled down exclusively to hudud or to PAS, there must be some shared responsibility. The Kajang move, differences in style and the reality of catering to different constituencies have made for a problematic marriage.
The Kelantan hudud bill will now force the opposition partners to come to terms with the issues that have divided them. This is never easy. Addressing Kelantan hudud will be the Pakatan’s greatest test.
On all sides questions are being asked. How do you work with a partner you no longer trust, a partner who you see as selfish, a partner who is unable to fulfill responsibilities and a partner who thinks and claims to represents a core group of views that are so different from your own? Most would say you don’t. Others would say you have to try.

As with every problematic relationship, there is a need for distance and reflection. Statesman leadership requires that a difficult decision be carefully considered. How Pakatan will solve this problem will reveal how it will govern, and unlike Umno it does not have the same resources and bounty of position to woo support and keep the coalition together.

The strategic response to the hudud issue divides all the Pakatan parties. The Kelantan PKR representative’s vote and Selangor Menteri Besar Azmin’s Ali’s own alliance with PAS ulama point to some of these ambiguities.

Pakatan will face even more public pressure than the BN component partners. The decision will have spillovers for governance in Penang and Selangor. While both of these governments can survive without PAS, there will be political implications for exclusion.

Pakatan partners will likely need to enter a long cooling off period for assessment and review. Urgings for freezes have already begun. This distance will allow the path ahead to emerge.

After the PAS election this June, it will be clearer whether the PAS members will vote for a leadership that has opted for personal power and undermined the party’s option at national power or will allow for the possibility of collaboration.  

As the opposition moves forward, PAS will need to show that it has something to offer politically besides its focus on hudud and reaffirm its commitment to Pakatan emphatically in its party polls.

The other Pakatan component parties will also have to find common ground, work toward respecting the choices of others, move away difference, and strive to build a stronger fabric of leadership for Malaysia. Pakatan will now have to engage in its own politics of containment and national consciousness.

There are limited reasons for optimism, but the possibilities of learning on all sides offers promise and a path ahead.

Part I: PAS’s hudud folly - a political putsch

Part II: PAS’s hudud folly - it’s not chosen by all



BRIDGET WELSH is a Senior Research Associate at the Center for East Asia Democratic Studies of National Taiwan University and can be reached at bridgetwelsh1@gmail.com.

Wednesday, January 14, 2015

Why S'wak redelineation is unconstitutional

This is important. (Originally published in Malaysiakini, by Wong Chin Huat)

Why Sarawak redelineation is unconstitutional


Contrary to the understanding of the Election Commission (EC) and many politicians on both sides of the divide, the electoral constituency redelineation process is not to be dictated by the EC and parties it involves with in behind-the-scene negotiations.

The EC is just the proponent of the redelineation plan (termed “recommendation” in thefederal constitution), which is to be ultimately approved by the Parliament (Dewan Rakyat), after members of the public scrutinise and provide feedback or objections (termed “representation”) on the EC’s plans.

1   What does the federal constitution’s 13th Schedule say?

All these are stipulated in the 13th Schedule of the federal constitution.

1.1     What is to be on display?

Section 4 of the 13th Schedule stipulates that
“Where the Election Commission have provisionally determined to make recommendations under Clause (2) of Article 113 affecting any constituency, they shall inform the Speaker of the House of Representatives and the Prime Minister accordingly, and shall publish in the Gazette and in at least on newspaper circulating in the constituency a notice stating -

(a) the effect of their proposed recommendations, and (except in a case where they propose to recommend that no alteration be made in respect of the constituency) that a copy of their recommendations is open to inspection at a specified place within the constituency; and

(b) that representations with respect to the proposed recommendations may be made to the Commission within one month after the publication of such notice,
and the Commission shall take into consideration any representation duly made in accordance with any such notice.”

1.2   Who can object?

Who are the stakeholders qualified to make “representations” in this short one-month period? Section 5 defines them to be:

“(a) the state government or any local authority whose area is wholly or partly comprised in the constituencies affected by the recommendation; or

(b) a body of one hundred or more persons whose names are shown on the current electoral rolls of the constituencies in question”

What happens after submission of representations? The EC is supposed to organise “local enquiries”, in which “the Election Commission shall have all the powers conferred on Commissioners by the Commissions of Enquiry Act 1950”, as stipulated by Section 6.

In other words, these inquiries are meant to be of the same rigour with those called by royal commissions of inquiries (RCIs). They are not meant to be public relations shows.

1.3   What are the grounds for objections?

Now, on what grounds can state governments, local governments and groups of 100 or more affected voters raise objections?

This is clearly stipulated in Section 2:

“The following principles shall as far as possible be taken into account in dividing any unit of review into constituencies pursuant to the provisions of Articles 116 and 117 -

(a) while having regard to the desirability of giving all electors reasonably convenient opportunities of going to the polls, constituencies ought to be delimited so that they do not cross State boundaries and regard ought to be had to the inconvenience of State constituencies crossing the boundaries of federal constituencies;

(b) regard ought to be to the administrative facilities available within the constituencies for the establishment of the necessary registration and polling machines;

(c) the number of electors within each constituency in a state ought to be approximately equal except that, having regard to the greater difficulty of reaching electors in the country districts and the other disadvantages facing rural constituencies, a measure of weightage for area ought to be given to such constituencies;

(d) regard ought to be had to the inconveniences attendant on alterations of constituencies, and to the maintenance of local ties.”

Conditions in 2(a) and 2(b) have never been violated because that serves no parties’ interests. The key contentions are always with the compliance of sub-sections 2(c) and 2(d).

The phrase “approximately equal” in Section 2(c) invalidates malapportionment except for the ground of “greater difficulty of reaching electors… and other disadvantages facing rural constituencies”, which basically means transportational and communicational challenges.

The phrase “maintenance of local ties” then invalidates gerrymandering. The EC cannot simply break up local communities and put people with little commonalities into a constituency.

2    What information is constitutionally needed in the redelineation display?

To allow for public feedback – by state and local governments and affected voters – as per Sections 2, 4 and 5, clearly the EC’s redelineation proposal must contain sufficient information for the following tasks to be possible.













By definition, redelineation is simply re-organising voters into new geographical divisions, corresponding to new arrangements in electoral roll.

Technically, electoral maps show three layers of division: parliamentary constituency, state constituency and polling district (housing estates, villages, etc). This corresponds to the organisation of voters in electoral rolls, with one more layer, namely, locality (streets, apartments, etc).

The parliamentary constituency, state constituency and polling district have their code numbers.

For example, polling district Rajang Park where Najib made his infamous “you help me, I help you” offer is currently coded as 2124801, which stands for P212 Sibu (parliamentary constituency), N48 Pelawan (state constituency) and 01 Rajang Park (polling district).

2.1 “The effect”

“The effect of (the EC’s) proposed recommendations” as stipulated in Section 5(a) is therefore not just a state-wide map of Sarawak divided into 31 parliamentary constituencies and 82 state constituencies, and a list of voter numbers in each of the parliamentary and state constituencies and polling districts. That is “recommendations”, not the “effects”.

The “effects” mean “changes” or “differences” between the proposal and the status quo. The “effects” can be known from:

(a) An exhaustive list of changes to the geographical boundaries and areas (in square kilometres) of polling districts, state constituencies and parliamentary constituencies;

(b) Constituency maps – in the same format as those used in elections – with the proposed boundaries overlaid on polling district, administrative, physical and infrastructural boundaries: and

(c) “Proposed” electoral rolls to be used should the redelineation proposal be accepted.

2.2     Affected Voters

The voter can only know if he or she is affected by first knowing which constituency he/she is in and with whom he/she will share the constituency. Without the “proposed electoral roll” and the detailed maps, he/she cannot ascertain this.

2.3    Malapportionment

Assessing if all constituencies in the state are “approximately equal”, one needs only the electorate size of parliamentary and state constituencies. To assess if the malapportionment is constitutionally compliant, namely if there is no alternative to avoid excessively small constituencies, one  would need on-map information. Information on landmass of constituencies also helps to ascertain the need for under-sized constituencies.

2.4    Gerrymandering

To mount a reasonable challenge to suspected cases of gerrymandering which violates the “maintenance of local ties” condition under Section 2(d), one must have the detailed maps and electorate size up to the polling district level.

Without sufficient information listed as in Table 1 above, the voters will not be able to effectively participate in the redelienation process. One day they are not supplied with the necessary data and map, one day in the precious one-month period is wasted.

Tomorrow: Part II - Information the EC is holding back







WONG CHIN HUAT earned his PhD on the electoral system and party system in West Malaysia from the University of Essex. He is a fellow at the Penang Institute, and a resource person for electoral reform lobby, Bersih 2.0.
 

Tuesday, December 30, 2014

Triple whammy for Sarawak's old guard

AN UNHAPPY NEW YEAR FOR SARAWAK'S OLD GUARD
[An important development and a huge step forward for indigenous rights In Sarawak. Congratulations to NCR lawyers - especially Baru Bian - and their hardworking team].
Original story from MALAYSIAKINI
Sarawak's political elite have accumulated power and startling wealth by taking over land from native communities, but now face the prospect of setbacks in the new year.

The entrenched ‘old guard’, accustomed to holding undisputed control over public life, may be struck by a triple whammy.

Firstly, the courts have overturned several ministerial decisions to award land to crony companies. Land minister James Masing has branded critics of Sarawak's land policies as "arrogant and ignorant", but judges have disagreed in several prominent cases, granting local villagers’ Native Customary Rights (NCR) claims to land taken over by the government.

Secondly, the new media has exposed ‘get-rich-quick’ land schemes to the world – and crucially, to many Sarawakians previously force-fed a steady diet of propaganda by state-owned television RTM and local newspapers.

what is the ming court affair 090506Thirdly, the ruling political class is now confronted with the prospect of losing the majority of the urban Chinese-dominated seats in Kuching, Sibu, Miri, Sarikei and Bintulu, and even a sizeable number of rural Dayak seats in the upcoming state election to the Pakatan Rakyat.

Political observers are predicting a BN loss of a dozen urban seats, and a similar number of suburban and rural seats. This would be the largest swing since the BN consolidated its power in the 1991 state election, after nearly being replaced by the now-defunct Parti Bansa Dayak Sarawak (PBDS) and Permas in the 1986 ‘Ming Court Affair'.

'Parade of federal leaders'


Commentators have even speculated that Chief Minister Taib Mahmud may step down immediately before the state election, and allow his deputy Alfred Jabu to lead a caretaker government.

This is seen as a potential last-ditch attempt to defuse criticism of Taib's financial and land deals, both within and outside the BN, a bold gambit that would remove Taib as the prime target for a Pakatan campaign.

However, other observers point out this ‘shock' scenario would lead to vicious and potentially insoluble infighting within the state BN since Taib has traditionally imposed his control over the factions in his PBB by playing off political rivals in the party against one another.

azlanUntil now, BN leaders have forged a united front, backing Taib to lead them into the election, saying he is the ‘glue' that keeps the BN together.

"There has been a groundswell in recent months in northern Sarawak: (Sarawak PKR chief) Baru Bian is expected to win in Ba'kelalan," an influential Sarawak politician told Malaysiakini, "so there's been a parade of federal BN leaders visiting Lawas and Limbang, including (information minister) Rais Yatim and (deputy premier) Muhyiddin Yassin this month, and (premier) Najib Razak next month.

"These visits have produced headlines like ‘Lawas may get a new airport' or ‘Plans afoot for a new hospital' or ‘Malaysia ready to build bridge at Pandaruan in Limbang' – they must be terrified of Baru Bian winning," he said.

NONEBaru Bian (right) is from the minority Lun Bawang ethnic group in a state made up entirely of ethnic minorities. He was raised in Ba'kelalan, a hilly, poor region upriver from Lawas.

Baru Bian, then an independent candidate, lost in Ba'kelalan to Nelson Balang Rining of the BN by 475 votes in the last state polls in 2006. He then mounted an unsuccessful election petition seeking to nullify the result; in his petition, he alleged Nelson Balang and his agents had resorted to vote-buying by giving cash to voters.

'Game changing’ rulings


Baru Bian and a handful of other land rights lawyers have been responsible for a string of recent landmark rulings in NCR cases against the state government. The judgments have returned forests to native Iban, Malay and other landowners throughout Sarawak, following intrusion by logging or plantation business interests with powerful backers in the government.

NONE"These cases are changing the game," says Muhin Urip, a native land rights advocate. "These rural people are showing real courage, standing up to the state government, and to the big bullies in the logging sector. They've shown no fear, even after they were harassed by gangsters, by police and by the authorities."

The NCR judgments hinged on the native plaintiffs demonstrating that they had cleared or used land, for dwellings, fruit trees, burial sites or shrines, or usual rights of way to their farms or cemeteries, before the beginning of 1958.

The state government has insisted that the onus of proof lies squarely on the native communities themselves. Aerial photographs dating from colonial times have been invaluable in helping native villagers win their NCR lawsuits.

The Federal Court, the highest legal authority in Malaysia, has recognised that forests reserved for hunting and collecting produce, or ‘pulau’, and the territorial area in which the forest is located, or ‘pemakai menoa’, fall under the realm of NCR.

But the state government has not, to date, altered its land policies.

High-profile Penan lawsuits

Over the past decade, Baru Bian has taken on several high-profile Penan NCR battles, including a new Ba Jawi lawsuit announced last week.

azlanHowever, the Penan have yet to win a pivotal legal decision, similar to those obtained by the Malays and Ibans in Sarawak, and the Orang Asli in the peninsula.

This is because Penan NCR claims are complicated by the fact that most of the 12,000 to 15,000 Penan have only settled in the last few decades. The Penan were mainly nomadic, with precious few permanent crops or dwellings, before 1958.

But lawyers for the Penan argue their NCR claims are no different from other communities', since the Penan also rely on the forests for their food and survival. They say the traditional Penan practice of ‘molong’, putting aside forest resources for shared use, is almost identical to the Iban custom of preserving ‘pulau’ for communal use.

"By and through their customary practice, mostly characterised as ‘molong’, tribal groups of the nomadic Penan lived in and within distinct territories. Traditional dwelling huts called ‘lamin toro’ were left behind as distinct marks of earlier settlements," the Ba Jawi plaintiffs said, in their statement of claim to the High Court.

"Ba Jawi Penans, like the 200-plus communities who have taken companies and the Sarawak government to court for NCR land rights, are being forced to seek the judgments for justice and for the people's rights to be defended," said See Chee How, a lawyer for the Ba Jawi villagers.

"Beyond the court case, the untold sufferings of the Ba Jawi people and others in similar cases mustn't be hidden. Land to the native people isn't just property, it's a crucial aspect of the living history of the community, and very much the lifeline of the people."

Land rights and elections will certainly contribute to an intriguing new year in Sarawak.



KERUAH USIT is a human rights activist - ‘anak Sarawak, bangsa Malaysia’. This weekly column is an effort to provide a voice for marginalised Malaysians. Keruah Usit can be contacted atkeruah_usit@yahoo.com.

Wednesday, December 10, 2014

Slow action made Malaysia complicit in murders?

NGO: Malaysia 'guilty' of Myanmar killings

(http://www.malaysiakini.com/news/283065)

An international Myanmar activist finds it quite shocking that the Penang police have not immediately responded to the killings of Myanmar nationals, which has been taking place since January.

"Is it because they are inefficient, slow to act because it involves migrants and asylum-seekers?" Altsean-Burma coordinator Debbie Stothard asked in an interview with Malaysiakini.

"These murders and the murderers deserve to be condemned and prosecuted," said Stothard, who is also International Federation for Human Rights secretary-general.

So far 18 Myanmar nationals have been killed, with their body parts dismembered, while police have arrested 17 people in connection with the murders.

Last Friday, police raided a house on Jalan Kampung Pisang, Bukit Mertajam, believed to be where the slaughtering of the Myanmarese took place.

Malaysiakini visited the crime scene on Monday, and found many of the villagers living in fear of the gruesome incidents in their neighbourhood.

While the authorities did not rule out revenge, they have denied that the killings were due to religious conflicts.

It is learnt that the killings have been taking place since January this year but police responded publicly only after English daily The Malay Mail reported on the spate of killings on Sept 18.

Stothard said migrants and asylum seekers in Malaysia were hardly convinced of the importance of the rule of law due to the way they were treated.

"When people feel they cannot rely on local authorities to protect them from violence and discrimination, it becomes easy to create a vigilante response," she said.

Malaysia is also guilty of allowing Myanmar to perpetuate "an extreme system of impunity and violence" on its own people, Stothard said.

Revenge murders an acceptable response?

This system encourages its people to think that revenge murders are an acceptable response to the genocidal situation faced by the Rohingya community, she added.

The Rohingya, a Muslim minority persecuted for decades in Myanmar, have been fleeing the country, seeking asylum in Malaysia and elsewhere.

Stothard called on Malaysia to be courageous enough to take a firm stand on combatting the violence in Burma and insisting on the protection of civilians from all backgrounds.

Most ethnic and religious minorities, such as the Rohingya, Kachin, Chin and Muslims from other ethnic groups, have no hope of protection against violence in Myanmar, she added.


Thousands of them have been killed, kidnapped, raped or have disappeared without any trace, she noted.

She said the Rakhine Action Plan, promoted as a solution to the problems in Arakan state, did not help either.

It will see up to a million Rohingya locked up in camps indefinitely, while another 100,000 of them  will be given third class citizenship and forced to live in segregated "freedom", she added.

Malaysia and the rest of the Aseam countries will bear the consequences of their decades-long reluctance to deal honestly with conflict and systematic and widespread violations in Burma, she said.

"If migrants and asylum seekers feel safe and respected, it becomes easier for them to prevent and constrain violence in the community," she said.

"These murders are deeply shocking, but not surprising. In some ways, the behaviour of our regional governments made them inevitable.

"Persecuting more asylum-seekers will not make things any better. It will only increase the conviction that the system cannot be relied on for protection," Stothard added.