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.

Thirdly, 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.

Until 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.

Baru 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.

"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.

However, 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.

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.

AG: Social contract basis for nation-building

The 900-pound gorilla in the room. 

AG quoting former LP and Sultan of Perak Azlan: "....a unique document without any parallel anywhere."

The question is, even if it were historically true that the Malaysian Constitution was realised with a bias for Malay Society and the sultanate, does this constitute 'special rights' that relegate minorities into a shrinking public space? 

Which civillised country modern economy separates and classifies its citizens in this way and then tell them to be happy they are 2nd class? I mean, if we are all equal taxpayers, does it not make sense that we should enjoy equal benefits and equal constitutional protection? 

AG: Social contract basis for nation-building

[From Malaysiakini]

Attorney-general Abdul Gani Patail reminded Malaysians the need to abide by the “social contract” developed by the country’s forefathers.
 
“Open any history book on Malaysia and it will recount that Malaysia’s communal approach to politics and social and economic structure today is the legacy of the British system of governance in Malaya,” said Gani in his keynote address at a national law conference last week.
 
Quoting Edmund Burke who said, “Those who don’t know history are destined to repeat it”, Gani emphasises the need to learn from the past.
The Chinese and Indians were brought in because the Malays did not want to engage in modern economy in 19th century Malaya, he explained.
 
“It has its genesis in the segregation of ethnic migrant workers according to sectors of work,” Gani said in his paper titled ‘Current challenges in preserving social order and national harmony - a critical note’ delivered at the Judicial and Legal Training Institute conference.
 
The Chinese and Indians were brought in because the Malays did not want to engage in modern economy in 19th century Malaya, he explained.
 
“It has its genesis in the segregation of ethnic migrant workers according to sectors of work,” Gani said in his paper titled ‘Current challenges in preserving social order and national harmony - a critical note’ delivered at the Judicial and Legal Training Institute conference.

“When the general Malay population refused to work with the British in the tin mines and rubber plantations - the two most important and profitable exports of the country in the late 19th century - the British encouraged the immigration of labourers from China and India to work in these sectors, as well as in public infrastructure works, rails and roads.
 
This, he said, resulted in the concentration of Chinese population in the towns and Indians in the rubber estates. Malays, mainly in the rural areas, were involved in the agricultural and fishing sectors.
 
The top-most legal officer in the country said the British were not interested in integration then and instead, encouraged the Chinese and Indian immigrants to pledge their loyalty to their homeland.
 
“As a collorary to the foreign workers Malaysia depends on today, Malaya was only to be considered “tanah tumpahnya peluhku” - the land where I toil for wealth without more.
 
“But when China fell to the communists and India was wrecked with poverty, the Chinese and Indian immigrant workers decided they should stay permanently for a better future,” he said.
 
Seeds of polarisation
 
Referring to World War Two as a great equaliser, Gani said when Japan attacked Malaya, the population under British rule took up guerilla warfare.
 
However, he said polarisation resurfaced after the war, following the state of emergency which was called then to address communist insurgency.
 
Preventive action was taken where Chinese are placed in new villages, with Malays and Indians forming the security forces.
 
With the coming of independence in 1957, Gani said there was marked disparity among the races economically and in education and other sectors.
 
Malays, he said, had no capital wealth and their participation in the modern economy was almost non-existent, even among the aristocratic class.
 
“The Chinese had become the main participant in the economic and commercial sectors while the majority of Malays remained in the rural areas.
 
“The lucrative modern industries and services sectors remained Euro-centric. Poverty, especially among the Malays, was widespread and the income inequalities between the races a matter of serious concern for the new, young government.”
 
Following the disparity, he said the “social contract” was mooted to achieve balance that underpins the relevant provisions in the Federal Constitution drafted by the Reid Commission.
 
Gani recalled what the late Perak sultan and former lord president Sultan Azlan Shah (right) had said of the “social contract” at the Malaysian Law Conference in 2003.
 
Azlan had said inherent differences had to be accommodated into a constitutional framework which recognised the traditional features of Malay society with the sultanate system at the apex of the Malaysian Constitution.
 
“Thus, there was produced in August 1957 a unique document without any parallel anywhere. It adopted the essential features of the Westminster model and built it into the traditional features of Malay society,” Azlan had said.
 
Respect 'social contract'
 
“This constitution reflected a social contract between the multiracial peoples of our country. Thus, matters of citizenship for the non-Malays, the Malay language, and special privileges for the Malays and the indigenous peoples of Malaysia were safeguarded and given the added protection of requiring the consent of the Conference of Rulers before change could be effected to them,” the Perak ruler said.
 
Azlan had added that it is fundamental in this regard that the Federal Constitution is the supreme law of the land and constitutes the grundnorm (basic norm) to which all the other laws are subject.
 
“This essential feature of the constitution ensures that the social contract between the various races of our country embodied in the independence Constitution of 1957 is safeguarded and forever ensures to the Malaysian people, as a whole, for their benefit.”
 
Gani said the value of the “social contract” elements that we have inherited should never be underestimated or undermined.
 
“It must be appreciated that these elements in the Federal Constitution were engineered by the Alliance in consultation with the Malay Rulers as the best solution to protect the interest of the groups concerned.
 
“This in particular includes the trade-off between the granting of citizenship for the Chinese and Indian migrants for recognition of the special Malay rights.
 
“Similarly the protections for the customary aboriginal rights of the indigenous peoples are consciously entrenched in the constitution,” he said.
 
The top government lawyer said measures should be taken to observe the ideals established in the constitution - in letter and in spirit, whether it is concerning religion, citizenship of non-Malays, the special rights of Malay/bumiputera and the Orang Asal or the special position and privileges of the rulers or the rights conferred on Sabah and Sarawak.
 
He adds all these rights must be respected and implemented unless and until the Federal Constitution is amended by a vote or referendum of the people.
 
"This is because all these are elements of the ‘social contract’ and constitute the basic pillars of the Federal Constitution and Malaysia."
 

No harm comes to woman walking 10 hrs in NYC?

I am wondering how the harm principle applies here.

Yes, there are limits.

I haven’t been on Facebook for a week and that’s a record! And here’s my response to Ethan. First part of another long reply. And quoting him, If anyone is wondering why I’ve spent so much (or too much) time on this: I cannot separate Mill’s tolerance from my faith.

The reason I pointed to Mill’s detractors is because there are a several (those I am familiar with and have read) whose views are scathing, and do say something important about Mill’s inconsistencies and other utilitarian/classical liberal philosophers of his ilk. Maybe I only read authors I agree with. Like Mill’s contemporary JF Stephen (who has sadly disappeared from popular discourse on liberalism), or the late Australian philosopher David Stove who wrote this snarky line: “Liberalism demands that people without guns be able to tell people with guns what to do.” Ok, quotes are not arguments, yet how these 2 skewer Mill with nothing but common sense.

There are those who do not necessarily say Mill is an idiot, but who admit to the philosophical conundrum of applying his ideas to justice, education, politics, economics, what’s good, what’s right, etc in the real world. As you say, it has to be worked out, the negotiations of which make for a whole lot of profit for publishers. But who’s to be the referee? Harvard’s Michael Sandel whose books argue for virtue and common good (and he’s not a Christian), because not doing so would be fatal to a society that wants to preserve liberty and freedom. So you need laws – and like it or not, the application of laws presupposes morality and restraint.

You know Rawles broadened Mill’s ideas into a theory of social justice: “Society is rightly ordered, and therefore just, when its major institutions are arranged so as to achieve the greatest net balance of satisfactions.” I may disagree with some conclusions but fact is, philosophers don’t like to say they are drawing a line, but a line is what they are talking about.  Rawls talks about fairness and social contract; Mill argues for the harm principle and happiness. Whose line is it anyway? Why should your lines be prettier than mine? 

Perhaps Mill is Malthusian because he is a child of his time (like Luther’s anti-semitism?), but his

inconsistency is carried through his belief that liberty as he espouses works best in civilized societies and won’t apply to barbarians. So backward societies (like Singapore and Malaysia?) need an education in virtue, even coercion, while enlightened ones don’t because they can reason values for themselves and are unlikely to rape women. It merely means that every idea is conditional or contingent, and depends on the position you define. That’s my beef – contingent. You always have to smuggle in some boundaries, or maybe a bearded man or two from ancient Greece.

Which is what JF Stephen referred to all things being equal, that there's no such thing to begin with: 

“Mr. Mill’s principle throughout assumes existence of an ideal state of things in which everyone has precisely the position which, with a view to the general happiness of the world, he ought to hold. If such a state of things existed there would be some plausibility in saying that no one ought to interfere with anyone else except for the sake of protecting himself against attack, by maintaining the existing state of things. But as no such state of things exists or ever yet existed in any age or country, the principle has at present no locus standi.”

Spidey’s Uncle Ben’s right on the responsibility bit. JF Stephen also wrote, 

“There is hardly a habit which men in general regard as good which is not acquired by a series of more or less painful and laborious acts. The condition of human life is such that we must of necessity be restrained and compelled by circumstances in nearly every action of our lives.”   

It was he who also said government is a mild form of coercion. That's how we are. People do not in general seek public or common good but personal interest first. Perhaps 'coercion' isn't nice, but it just means we need regulations. Unless you are a libertarian with an anarchic bent, you wouldn’t argue that’s a bad thing. Slavery was abolished in the US not because reasonable men and women agreed it was unacceptable. In fact they argued that abolishment would harm the economy. A government went to war to end it, unhappily for the South.

One of my questions was, if something is wrong and offensive, do we have the right to call it out? Gurmit’s daughter Gabrielle surely believes it was within her right to say raping women isn’t cool. More than that, she and I believe that raping or abusing women (or man or child) is evil whatever colour or creed you profess. I do not know any government on earth that will say raping women is one of 5 acceptable ways to treat women and let’s teach our children the freedom of choice. No, you want to be able to say, raping women is not on the table.

Lewd music may not turn everyone into a rapist, but it will surely diminish the value of women in time, demean sexual relations and thus increase the toxicity of society, and escalate sexual abuse. Society becomes poisonous, weakens social well-being, and that’s where the harm lies. We are after all connected selves aren’t we?  A simple illustration: political and advertising messages presume that frequent airing and persuasion of a cause do alter perception and sway public opinion. Otherwise why bother to advertise and communicate so feverishly? Why then assume that a negative message will have no effect? If something is bad or wrong, why is public restrain and curtailment not good?

Society already shows us what happens when liberty is unrestrained: a culture of indifference takes over. Harvard philosopher Robert Nozick admits that all that libertarians really want is to be left alone.

This is why Michael Sandel wrote that, “The public philosophy by which we live cannot secure the liberty it promises because it cannot inspire the sense of community and civic engagement that liberty requires.” Hmm, I wonder if he is referring to voter turnout too.

Okay, Sandel also confesses he hasn’t figured it all out (same as all of us here who are arguing in a closed universe). But Obama’s credited in Sandel’s 2010 book, Justice, when he referred to moral transformation via religion:  “Our fear of getting ‘preachy’ may… lead us to discount the role that values and culture play in some of our most urgent social problems,” and that would be a serious mistake. That so-called act of tolerance needs a subject, something to direct at; and surely somethings are intolerable - because it makes society less tolerable for human flourishing. 

Let’s put religion aside for now. We would agree that it’s more preferable to live in a society where laws respect personal rights and where personal rights uphold laws, for the common good. And common good means ‘good’ values, morality, that which contributes to human flourishing. We may disagree on the fine print, but we must be able to say that some rights do diminish our right to a just, decent, and fair society, and that’s plain wrong.

Predators on the prowl in Setapak

I have just met up with a few Myanmar refugees who are residents at the Danau Kota flats off Jalan Genting Klang, Setapak. They have been living there on the upper floors of these low cost flats between 4 and 10 years, earning a simple livelihood teaching in a refugee school while minding their own business, waiting to be resettled in a third country.

As Joan tells it, “The crime is getting worse. It was a safer place last time, but not now.” The situation has become so bad, many refugee families are afraid to leave their home or take the lift up to their floor, she added. Others have decided to move away from Setapak.

The robbers, they are Malaysians, I interjected?

“Yes. Many live here also and we know where they live. They wait for us. Nowadays there is a robbery nearly everyday. More than 10 gangsters usually wait around the lift, and some of their friends wait on the 1st or 2nd or 3rd floor. When they see a Myanmar coming, they whistle like this (she makes a bird sound) or make some signal. Then they surround you.”

Family man and fellow teacher George nodded. “My wife works in the restaurant and comes home at midnight. It’s very frightening for my wife, so we moved to another flat with security nearby. A bit more expensive, but safer.”

You have been robbed? “Sure, a couple of times,” George said. “They surround us, take our wallets, our handphones. If you are slow, they hit you or show you a knife. That's why I walk with my wife back from work at night.”

George explained that Myanmar refugees working the night shift are most at risk. “The robbers know we come home at 3 or 4 am, so they wait. These gangsters always wait in groups. So we wait until they go away before we go home, sometimes using the fire escape stairs.”

The Danau Kota flats in Setapak are a low cost maximum density housing development comprising five 18-floor blocks. Most of the units are about 700 square foot each on average. Small, compact, with 3 rooms and a bathroom. Community facilities are limited and dilapidated, hygiene is lacking, and basic amenities such as lifts are constantly broken.

The problem is exacerbated in this aging development (nearly 20 years old) by poor essential maintenance and complete indifference of residents and housing authorities alike. No wonder it has become a breeding ground for crime. Gangs operate openly while residents have learned to look the other way.

Like low-cost housing everywhere in the city, the Danau Kota flats attract a large number of undocumented migrant workers and refugees. As condominiums and shopping malls sprouted overnight on tracts of ex-mining land, the promise of employment lured newly arrived foreigners here, many of whom are Myanmars, away from familiar but crowded refugee enclaves in the city.

“My wife is so scared we moved to another area. She said at work, already scared of boss. Walking home, scared of police. Reach the flat, scared of gangsters,” George smiled warily.

What makes matters worse is that the authorities are no help either. Having accompanied Myanmars to the Police Station to lodge reports, I have witnessed first-hand how our men in blue treat these unwelcomed foreigners. They are easy pickings too. And more trouble for you if you do not have an UNHCR Refugee card.

Peter who has been here for ten years told of an incident that happened last month. A young Myanmar man was accosted after work near the lift by 6 local youths, one armed with a knife. In the tussle, the Myanmar grabbed the knife and ran for his life. Speaking in Bahasa, Peter said, “Itu geng, dia orang jerit, ‘Tolong! Ada Myanmar perompak bawa pisau.’ Lepas itu, orang lain pun kejar sambil orang Myanmar kena tangkap. Dia kena hentam juga. Kami punya komuniti bayar Polis RM5000 bagi dia bebas.”

Malaysians have become brazen predators preying on helpless refugees. And it appears no one is surprised.

On another occasion I was summoned to help out a Myanmar refugee who did not have an UNHCR card. There he was looking like a trapped animal, his eyes fixed on the floor, while 4 other unsmiling policemen sat with him in a sidewalk mamak store, pulling on their cigarettes. A spokesman took me to a side and told me that RM300 would help the Myanmar. “Kalau kita hantar ke Immigresen, lagi teruk. Kena bayar RM3000.”

It’s hard not to be cynical about law enforcement, human rights and justice in our blighted nation. But by sitting on our hands we lose the right to complain.

Tomorrow, my friend and church community liaison Ravee and I are accompanying 3 Myanmar victims to the court. All three – they are unrelated - were robbed during a particularly violent weekend blitz in November last year.

According toThanga, two men broke into his home in broad daylight, held a knife to his young daughter and robbed his family. Thankfully these robbers were apprehended - now that's something you don't see everyday! Well done!

So these saksi-saksi who were subpoenaed to testify will have their first taste of Malaysia’s legal system. What stories will they tell when this episode is finally over? The case has been postponed twice already. I hope for their sake the wheels of justice will turn in their favour. For once.

 (All names have been changed to protect their identity)