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30 November, 2008

Anwar Ibrahim Keynote Address at PKR 2008 Congress, 29 November 2008, Stadium Melawati, Shah Alam


I stand before you, humbled by your courage, overwhelmed by your loyalty, and inspired by your extraordinary feats. From a dark cell I felt your pain. I cried when your freedom was taken from you.

And today I share your pride and joy; that we are gathered here to celebrate the historic event our fellow Malaysians brought forth on March 8 - a Brave New Dawn.

I welcome the new faces among us. When we formed this party we knew a day would come when we would open our doors to a flood of Malaysians joining us on this noble mission. Your presence marks the beginning of a new phase for our party and for our nation.

I marvel at the support we have earned from our nation's youth and women. You have given us hope that Malaysia's future will fall into the hands of a generation that cherishes democracy and will continue the fight for freedom and justice.

With this Congress we embark on a major exercise to refocus and reorganize the party to reach new levels of discipline and new heights of effectiveness. We will take steps to ensure that our call for justice is heard loud and clear from the northern reaches of Perlis to the southern tip of Johor and all the way to the shores of Sabah and Sarawak.

Yet it was not too long ago that many believed this party had no future. They poured scorn on our aspirations and laughed at our dreams. Some even said we would just disappear!

They said multi-racial politics were impossible and our vision for a unified nation had all but expired. There are some whose conviction wavered and who believed that the ship upon which we were sailing may not reach its destined shore. To those who harbor doubt I say: trust in the wisdom of the people and trust not the pundits and cynics bent on supporting a corrupt and decadent establishment.

The desire for change is unstoppable. The people can no longer tolerate the abuses of the current government that affront us each day. The prevailing order prevails no more.

Never in the country's history have Malaysians in such great numbers exercised their right to vote out of office such an entrenched institution. Never before have the people set aside their racial and religious identities and called in a single voice for a Brave New Dawn.

Our successes in 2008 are immense and we should be immensely proud. After two successful elections we have a proven that the Pakatan Rakyat coalition is strong and unified, working together hand-in-hand for change.

We have also witnessed a government under siege and a ruling party in disarray. We have seen them strangle and suffocate the democratic process and we have seen them ignore the crisis of an economy in turmoil.

Yes there have been setbacks. We skirted with destiny on September 16 and despite our best efforts our march to victory has been delayed. I empathise with you and with the people of Malaysia. We are all forced to further endure the slings and arrows of an incompetent government that has lost touch with the people. Although our promise has not yet been fulfilled, the Pakatan Rakyat leaders and I remain committed to the agenda for change and our tenacity has never been stronger.

I call upon you to aspire — as only we united in our quest can — to A Brave New Dawn: Where every child has the right to quality education and every family feels safe at home and in their streets. Where we can believe what we read in the newspapers and what we watch on the television. Where the country's leaders will be honest, where justice prevails and where judges cannot be bribed.

I ask of you first as Malaysians and second as members of KeADILan, let us prepare ourselves with a renewed resolve and the courage of conviction that with our efforts a thousand flowers of freedom will yet bloom in Malaysia.

To my fellow citizens in the Pakatan States, you have humbled me with your support and I thank you. I say to you – let us work together to bring forth a new order and a better quality of life; a new measure of confidence in the accountability of government. I ask you to bear with us; the challenges we face cannot be overcome in a single month and some may take more than a year to redress. Much has been accomplished already, and soon our State Governments will report regularly their accomplishments and their plans for the continued development of our states.

To those living outside the Pakatan States the task before you is formidable. You believe in KeADILan and you believe that with Pakatan Rakyat the future of the country can be great. Yet you live in the stronghold of Barisan Nasional. We need your unwavering commitment and we need you to work harder than ever before so that Pakatan Rakyat's banner can be raised throughout Malaysia.

We in Pakatan Rakyat will continue to protect the rights of every Malaysian including the Malays and Bumiputeras, and strive to bring forth greater quality of life for all. We will reach out to our friends in Sabah and Sarawak - Ibans, Kadazans, Dayaks. Your cry for help has been ignored. We in Pakatan Rakyat say we hear you and we will support you.

Members of Keadilan: Your work has brought our people together. Look around you. Our ancestors might not come from the same place. But we are citizens of this nation and we each want this country to move in the same direction to make it a better home for our children and grandchildren who - we hope - will be living together peacefully. And for them we wish a nation that is prosperous where they can obtain a good education and find a decent job to support their families.

These are Malaysian problems. They are not just Malay, Chinese, Indian, Iban, Dayak or Kadazan problems. They are ones that affect Sabah and Sarawak the same way that they matter to people living in Selangor, Penang, Kelantan or Johor. They are problems that we all face, day after day. And will continue to face them unless we work harder for change.

Today our nation is confronted with monumental challenges. The economy is in virtual crisis. Violent crime in our cities and villages has never been more pervasive. More Malaysians are jobless, or will lose their jobs in the coming year than ever before in our history. Our education system is crumbling just like the buildings in which our children attend school. Billions are wasted every year in blatant corruption while the poor and marginalized are left hoping for some reprieve.

We have called this gathering to celebrate our success but I am now calling you to arms. Let us renew our commitment. Let us resolve to build on what has been accomplished this year and make Malaysia great once again.

Let us fulfill our promise to our friends in Pakatan Rakyat, DAP and PAS, to build a strong partnership. We have shared aspirations for the country and we are stronger as a coalition than the sum of our parts. Together we will win the hearts and minds of the entire nation.

Thank you.

source:www.malaysiakini.com

--
Azmi Shahrin
012-9198557

~~~~~~~~~~~~~~~~~~

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27 November, 2008

CONSTITUTIONAL MONARCHY IN 21ST CENTURY MALAYSIA

Full text of Tunku Naquiyuddin's speech on Constitutional Monarchy in 21st Century Malaysia 


CONSTITUTIONAL MONARCHY IN 21ST CENTURY MALAYSIA

People have often been mesmerized by Royalty, Kings and Queens, Princes & Princesses.  It's because Royalty is often raised on a pedestal, having to set a regal and exemplary way of life.  In the Middle Ages many of these ancient kings were tribal chiefs leading their hordes into battle and defending their territories.  The reverence to these kings and rulers became such that for a period kings were associated with "Divine Right".  Indeed some of them really believed they had divine powers as per King Ethelred the Unready who really believed he could stop the waves from pounding the shores.  And he got thoroughly soaked trying to prove it!

Over time these kings had different names to reflect the political or territorial set up they represented.  From the Caesars of the Roman Empire, to the Tsars of Russia, Emperors of the Austro-Hungarian Empire, Kings and Queens of various countries in Europe, Emirs, Shahs, Sultans – they all have one common trait.  They are all hereditary and they are all sovereign Rulers.

Of course the extent and measure of their political power was always tested through time.  In England there were regular conflicts between the King and Parliament, with Parliament trying to curb the King's demands and the King conversely either trying to curtail Parliament's powers or win favour from Parliament for his policies and plans.  At one point Charles I lost his head literally when his opposition to Oliver Cromwell's Commonwealth and Parliamentary rule became a major point of contention.

As political systems matured the extent of the Kings' powers were often determined through political evolution.  This fine tuning of power often arose through a mix of rhetoric, confrontation, mitigation and conciliation.  It was a mark of political maturity that many monarchical systems have evolved into what is termed today Constitutional Monarchy.  However at times when there was great dissatisfaction it was revolution which determined the outcome.  Most famous of these was the French Revolution in 1789 when subsequently Louis XVI was beheaded.  Other well known revolutions include the massacre of the Tsar and his family in 1917, the execution of Emperor Haile Selassie and the ouster of the King of Greece.

However most monarchies have evolved peacefully.  As Parliamentary democracy took hold so Constitutional Monarchy evolved to give official sanction to Acts of Parliament, to participate in ceremonial duties, to receive Heads of States and to act as head of the Country's main religions.  While many Monarchs have taken to their duties with great pomp and ceremony, there have also been those who have taken a more political role.  Recently the King of Nepal lost his throne after declaring a state of emergency and suspending parliament for too long a period.  This infuriated the populace and Parliamentarians alike who eventually voted him out.

In Malaysia our system evolved through negotiations with the British Government prior to Independence to establish a Parliamentary System and rotational system of Monarchy.  Although the British had earlier advocated and formed the Malayan Union on 1st April 1946 which in effect abolished the sovereignty of the Malay Rulers, this however was duly shelved after much protest from the Rulers and UMNO.

This struggle against the Malayan Union had been the battle cry of UMNO in uniting the country and safeguarding the interests of the Rulers.

Despite this short-lived bid to undermine the Sovereignty of the Malay Rulers in 1946, the British were in fact largely responsible for the nurturing and development of the Malay Rulers into a structured and revered institution.  In the 19th Century from the signing of the Pangkor Engagement in January 1874, the British protected the Ruler's sovereignty respecting them as the highest authority.  The Raja was King to all intents and purposes and his "kerajaan" was bolstered with sound British administrative practices.  Palaces were built by the British administrators, Royals and Courtiers were educated, and British style ceremonies were introduced, like Birthday parades, which are still largely practiced today.  Perhaps the legacy of a proper administrative machinery is probably the best that the British can be remembered for.  (Joke – British invented bureaucracy.  Indians perfected it).

A little historical note you may be interested to know is that my great, great grandfather, Yam Tuan Antah, actually objected to the appointment of the first British Resident in Negeri Sembilan in 1875.  A brief battle ensued and he was in exile for about two years until the British Governor General in Singapore recommended to Queen Victoria that he be reinstated.  This was the last battle fought against the British in Malaya by a Malay Ruler and certainly reflects the fact that Malay rulers were proud of their sovereignty and were prepared to defend the rights of the kingdom and its people.

In modern Malaysia, Constitutional Monarchy is one of four basic governmental structures of the Constitution; the other three being the Executive, the Judiciary and the Legislature.  As a Constitutional Monarchy, it is important that each be independent and one of the Roles is to ensure that politicians respect these institutions.  One of the underlying assumptions of this doctrine of separation of powers is to prevent absolute power.  As we know absolute power corrupts absolutely.  It is vitally important, for example, that the Judiciary be independent from political considerations.  For most investors this independence is the ultimate test that will decide whether a country is safe to invest in or not.  The appointment of Judges is clearly within the purview of the Yang di-Pertuan Agong.  Recently the appointments of the new Chief Justice, President of Appeals Court and Chief Judge Malaya, were unanimously confirmed by the Rulers at their 215th meeting having taken into consideration all aspects of the respective Judges' service and career after consultation with the Prime Minister and Conference of Rulers.  But the Prime Minister himself must also consult the heads of the respective courts before tendering his advice.  So in this way the independence of the Judiciary is supposedly maintained.

You will recall that in 1983 and again in 1993, there was a confrontation with the Rulers in respect of the proposal by Dr. Mahathir to curb the Royal assent on legislation in Parliament and the Indemnity of Rulers respectively.

In respect of the event in 1983, what eventually was resolved was that the Agong was given 30 days to assent to a bill.  If the Agong were to refuse to give his assent to the bill, this legislation would be returned to Parliament for further debate (incorporating the Agong's objections) and if passed a second time and after another 30 day period would automatically become law.  My observation is that this amendment actually gave the Agong a say in the legislative process as the Agong could include his reasons for consideration.  It is interesting to note though that up to this time there has never been any attempt by the Agong to withhold such consent.  So this amendment of the Constitution, effected in a rather confrontational way, was in retrospect really not necessary after all.

In regard to the 1993 amendment, the removal of Immunity of the Ruler is a more serious matter as Malaysia is probably the only Monarchy in the world without such Immunity.

Following on from this 1993 amendment, it was provided for that legal suits against the Rulers are subject to permission of the Attorney-General.  A Special Court was to be provided to hear such cases.  Finally the Conference of Rulers could nominate two out of five Judges on the Special Court.  It is regrettable that no procedures have been written for the Special Court and instead of being "in camera" members of the press and the public are allowed to witness the proceedings.  It is quite lamentable that procedures for the Special Court have not really been properly drawn up befitting the proper respect and dignity for the Ruler.

This loss of immunity is perhaps the single biggest set back to the Institution of Ruler.  Sovereignty and Immunity have always been symbiotic.  It really becomes nonsensical that a Sovereign Ruler can be taken to Court for trying to protect the best interests of the nation and the people.  He must also be protected at all costs from pecuniary embarrassment so that his Sovereignty is not tarnished or undermined.  (To put it in another way can we afford to have a Ruler incarcerated or even made a bankrupt?)  As the highest authority in the land it is incumbent upon the administration to protect the Ruler's integrity and dignity so that the throne is respected without question.

It appears that the overall effect of the abolition of immunity and the setting up of the Special Court is indeed quite revolutionary.  With no more immunity, Rulers can be sued by ordinary citizens and even by the State.  If convicted they could be imprisoned.  And if they are imprisoned for more than one day they automatically lose their throne.  Previously Rulers relied very much on Article 71 of the Constitution in that the Federation shall guarantee the right of a Ruler "to hold, enjoy and exercise the constitutional rights and privileges of a Ruler of that State.  It appears now that this guarantee is flawed for without Immunity this guarantee cannot be effected.

Ironically we now have a situation in the country where Judges are immune in the exercising their judicial functions but Rulers are not.  Judges are fully protected from both civil and criminal process in the course of his judicial functions.

Let us now look at recent events which has actually given the Malaysian Monarchy an opportunity to come to the fore in the wake of the recent elections on 8th March 2008.  The electorate expressed its displeasure with the ruling government resulting in the opposition taking control in five states and leaving the Federal Capital monopolized by opposition figures.  Even in Negeri Sembilan the Barisan's majority in the State Assembly was by a mere three representatives.  A close shave by any standards.

This decimation of the Barisan Nasional that had ruled since 1957 was a reflection of the deep dissatisfaction of the Rakyat in respect of many issues.  I shall not endeavour to go through these issues to avoid misrepresentation.  Even Rulers have to be discretionary at times.

However what we saw in Kedah, Perlis, Perak, Penang, Selangor and Terengganu were the Rulers (and in the case of Penang the Governor) exercising their right under the Constitution to appoint the Menteri Besar or Chief Minister.  In Kedah the Menteri Besar is a member from PAS as PAS is the majority party.  In Perak the Sultan decided to appoint a member from PAS as Menteri Besar even though PKR is the major party.  We are not privy to the reasons given for the selection.  I understand that the Menteri Besar of Perak is a qualified Engineer and is perhaps regarded as better qualified for the position.  Whatever the reason it is the Ruler who has decided under the discretion given him under the State Constitution.  In Perlis, the Ruler actually used the occasion to stand firm to express the Rakyat's dissatisfaction.  Despite the Prime Minister's public support for the incumbent the Ruler decided to appoint a new Menteri Besar.  Similarly in Terengganu the new Menteri Besar elect was fully endorsed by the Ruler against the recommendation of the Prime Minister who was again supporting  the incumbent Menteri Besar.  These two incidents which took place over a period of 8 days and 19 days respectively saw the whole country gasping at the political ramifications and the forthrightness of the Ruler to put his foot down.  Never had a Prime Minister withdrawn his candidacy in the face of a vociferous Ruler.  In fact on 23rd March, Abdullah Badawi had actually called the appointment "unconstitutional".  However an audience with the Agong on 25th March obviously paved the way for Barisan Nasional to fully endorse Dato' Ahmad Said as Terengganu Menteri Besar.  In Selangor it was a totally new experience to see an opposition member being appointed Menteri Besar by the Sultan.  Being so close to Kuala Lumpur, Malaysians were generally pleased that the changeover went so smoothly.  This was a vivid example of a mature democracy in action.

It is heartening to note that these issues were resolved amicably and in a magnanimous manner.  Instead of a prolonged confrontation, the Terengganu selection was settled immediately after the Royal audience.  The winners are the Rakyat who are able to get on with their lives in peace, political leaders who can proceed with the business of State, and finally businessmen who can continue to churn the economy without the uncertainty which political stalemate can create.

In all these instances we see the respective Ruler exerting his power during times of change.  By sensing the need for change the Rulers have exercised their role to appoint new faces.  In the past, when Barisan Nasional governments were in the clear majority, the Rulers were often just endorsing and obliging the recommendations of the Prime Minister.  In this instance the Ruler has actually taken stock of the situation.  Some of the appointments were surely based on the feedback of the Rakyat that change was necessary and a new face in politics was the order of the day.

If you really analyze the situation that the Ruler is supposed to act upon the advice of the Prime Minister then one can sense that the action of the Ruler is really quite courageous, bold and almost confrontational.  However a Ruler is also a personage who has a keen sense of what the Rakyat wants.  Everyday there is a constant flow of citizens who "mengadap" the Ruler to convey their feelings about politicians, government and even more mundane matters.  This closeness of the Ruler to the Rakyat is quite unique, unlike the aloofness of Royalty in some other countries.  It is the continuation of the centuries old tradition of the Ruler holding court and listening to the plight of the Rakyat and offering remedies for the situation.  This closeness to the Rakyat and by being apolitical gives the Ruler an honest and accurate view of the situation.  The Ruler also thinks in the long term and what is good for the nation.  Quite often politicians look only to the next elections.

We have seen Rulers having to appoint Menteri Besar's in various States.  Perhaps one day the Agong may have to select a Prime Minister if no one group has a majority in Parliament.  Article 40 (2)(a) provides for the procedures and appointment of Prime Minister by the Agong using his own discretion.  This means he is not bound by the wishes or advice of an outgoing Prime Minister.  However there are certain constraints and conventions which guide him in performing this role.  For example if there is a party enjoying absolute majority in Parliament the King has no choice but to appoint its leader as Prime Minister.  But if a general election leads to a "Hung" Parliament the King may exercise his discretion to choose a person likely to command the confidence of Parliament.  As such the Agong's ability to exercise discretion in his selection and a need to be politically impartial are very important attributes in his capacity to act as Head of State.

More recently during the last Ruler's Conference in October 2008, the Rulers came out, with a press statement regarding the need to respect the Social contract that had been established to protect the rights of the Malays and the other races as enshrined in the Federal Constitution.  It emphasized the Constitutional role of the Ruler to safeguard the special position of the Malays, Islam as the official religion, the Malay language and the rights of other races in Malaysia.  Although already enshrined in the Federal Constitution it is a timely reminder to one and all, but particularly politicians, to recognize the wisdom of those who drafted the Federal Constitution.  This statement was certainly well received and most political parties from Barisan Nasional and Opposition parties came out in support of the Social Contract.  It was a unifying gesture during a tumultuous political period which had seen racial and religious issues being raised, demonstrations taking place, and politicians and NGO's pelting each other with dishonourable verbiage.

More recently certain Rulers had also come out with timely reminders regarding peace and harmony and respect for the Constitution.  We are advised that any amendment on the clauses pertaining to the Malay Rulers and their jurisdiction over Islam, the national language and the special position of the Malays and Bumiputeras in Sabah and Sarawak must first get their consent.

The Raja Muda of Perak also recently advised that Rulers should not agree if advice were given by government leaders that goes against the spirit of the Constitution, rule of law and universal principles of justice.

Several other Rulers have also come out with various pieces of advice.  The Sultan of Selangor is well known for his drive for a clean and efficient administration.  Corruption at all levels have been condemned, environmental degradation has been brought to the attention of the authorities.  Racial unity is quite often a rallying cry.  There are also many speeches which go unreported.

It is heartening to know that nearly all the Ruling families have their specific Yayasans or Foundations.  Many of these cater for education for the underprivileged, destitute families, homes and orphanages.  In Negeri Sembilan the three Foundations of Tuanku Ja'afar Educational Trust, Tuanku Najihah Foundation and Yayasan Tunku Naquiyuddin combined together to fund a Project to improve English in Rural Schools (PIERS) recognizing that in rural schools, teachers needed to be taught the methodology of teaching English properly in an interactive way rather than the old fashioned "rote" method.

Even in Sports, Royal families have come to the fore.  Sports such as Football, Hockey, Squash, Cricket, Golf, have been headed by Royalty.  The Sultan of Pahang had been President of the Asian Football Confederation and Tunku Imran (my brother) was President of World Squash for seven years.  Even today he is a member of the International Olympic Committee (IOC).

As head of the Islamic religion Rulers are duly consulted on most occasions.  Recently I read about the National Fatwa Council coming out with Fatwa on tomboys and considering some sort of Fatwa on Yoga.  I am not at all certain that any member of the Royalty has been consulted on these issues and if not, I would certainly encourage the Council to do so.  By their upbringing Rulers are well educated, well traveled and well informed.  It would be in the interest of Islam Hadhari the moderate form of Islam that the government is propagating that the ruler is fully involved in giving his opinion so that we can avoid the extremist tendencies that we see happening in other Islamic countries.  Islam is a progressive religion and the Ulama should be confident of the followers' faith rather than micro-managing their way of life.

Let me summarise then the role of Constitutional Monarchy in Malaysia.  As we proceed towards a more contentious and polemical political world there will have to be increasingly more Royal pronouncements.  The Ruler is like a referee or arbitrator having to come out with appropriate judicious statements at crucial times.  The Ruler should thus, at all times, have the best advisers, academics and philosophers so as to give him guidance during these critical periods.

Inevitably the Ruler has to assert himself in the political process while trying his best to be apolitical.  If Malaysia, in the future, is to see a much more vibrant scenario of opposing political forces then we can envisage the Malay Ruler playing a more crucial and assertive role in order to ensure that peace and harmony prevails and that the laws as provided for under the Constitution are adhered to by all parties.  If political parties see themselves as representatives of the people then the Rulers see themselves as Guardians of the Constitution.

This leads me to the last point I would like to make regarding Malaysian Constitutional Monarchy.  If the Ruler were to exercise his duties in a fair, just and impartial manner in protecting the Constitution, his sovereignty needs to be duly protected too.  Thus full immunity from civil and criminal proceedings should be reconsidered so that he is on par with other Constitutional Monarchs around the world. 

As I said it is ironic that Judges are immune in the performance of their judicial functions but Rulers are not.

Royal Immunity has been lost for 15 years.  It needs to be reclaimed and reinstated so that Constitutional Monarchy can be restored its full Sovereignty so as to play a more fitting and effective role in the 21st Century as Guardian of the Federal Constitution so that the endeavour to safeguard the interests of all communities, to promote peace, prosperity, economic security and good governance can surely be fulfilled.


Updated: 02:46PM Thu, 27 Nov 2008

13 November, 2008

Speech by Datuk Zaid Ibrahim at LAW ASIA 2008

Speech by Datuk Zaid Ibrahim at LAW ASIA 2008
31 October 2008 @ 9.00am
Kuala Lumpur Convention Centre

Malaysia – A Lost Democracy?

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

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

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

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

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

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

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

This new political philosophy in which the primacy of Malay interests was for all purposes and intents the raison d'ĂȘtre of government naturally led to interference with key institutions. I say naturally as it was, and still is, impossible to reconcile the principles of equality and civil rights of the people of this country with the
primacy of one group over all others. Needless to say, a new social order in which some are made to defer to the primacy of others is not going to be easily accepted. As such, in order to enforce compliance and to encourage acceptance harsh measures would have to be taken to quash protest or disagreement. Policy doctrine or diktat not supported by consensus will almost certainly be a subject of contention. It is for this reason that in the 1980s already harsh anti-democratic laws that allowed for the suppression of legitimate dissent such as the Internal Security Act, the Official Secrets Act, the Police Act, the Printing Presses and Publications Act and the Sedition Act were tightened further. Where possible, reliance on them was made immune from judicial scrutiny a feat achieved only through a constitutional amendment that suborned the Judiciary to Parliament. It got to a stage where when more than 5 friends got together, one wondered whether it was wiser to obtain a police permit. Such was the state of the law, such was the state of democracy.

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

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

There are less esoteric reasons but as, if not more, compelling ones. Indonesia's transition to democracy since the end of military rule in 1998 showcases these. The majority of Indonesians have embraced democracy, religious tolerance, and religious pluralism. In addition, a vibrant civil society has initiated public discussions on the nature of democracy, the separation of religion and state, women's rights, and human rights more generally. These developments have contributed to a gradual improvement in conditions for human rights, including religious freedom, over the past few years. Since 2003, Indonesia has also overtaken Malaysia on the Reporters sans Fronteres Press Freedom Index, moving up from 110th place to 100th out of 169 countries covered. Malaysia on the other hand has dropped from 104th place to 124th place in the same period. I am not surprised. In 1999, Indonesia passed a new Press Law that, in repealing 2 previous Suharto administration laws, guaranteed free press through the introduction of crucial measures. This new law allows journalists to freely join associations, guarantees the right of journalists to protect their sources, eliminates prior censorship of print or broadcast news and makes the subverting of the independence of the press a criminal offence. It also establishes an independent body to mediate between the press, the public and government institutions, uphold a code of ethics and adjudicates disputes. Progress has not stopped there. On 3 April this year, Indonesia passed its Freedom of Information Act. This latest law allows Indonesia's bureaucracy to be open to public scrutiny and compels government bodies
to disclose information. To enforce disclosures and to adjudicate disputes, a new body has been created under the new law, independent of government and the judiciary. While there remains some debate about the penal sanctions for misuse of the law, the passing of the Act clearly is a step in the right direction.

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

The critical feature of a constitutional democracy to me is the test of Constitutionality itself. Does the government allow its own legitimacy to be questioned? Does it permit executive decisions to be challenged? Written Constitutions normally provide the standard by which the legitimacy of government action is judged. In the United States the practice of judicial review of congressional legislation ensures that the power of government to legislate is kept under check. Bipartisan debate and votes of conscience are not only encouraged but also expected of Congressmen and Representatives. More recently the Basic law of Germany and Italy provided explicitly for judicial review of parliamentary legislation. We have the opposite situation here. The jurisdiction of the High Court can be, and has been, ousted when it comes to challenges of executive decisions even if such decisions impact on fundamental liberties and other rights under the Constitution. For instance, where government compulsorily acquires land for a public purpose, the Courts are prevented from questioning the bona fides of the acquisition. Where a discretion is exercised by the Minister of Home Affairs under the Internal Security Act, the Court is barred from examining the exercise of the discretion except so far as to ensure that the procedural requirements have been followed. Such detention without trial would be considered repugnant in any system predicated on the Rule of Law.

Nation building is not a simple process. It is not achieved through tinkering with political ideologies or injudicious use of the coercive powers of state. These do not promote the lasting peace and stability that we crave for. We have failed miserably in dealing with complex issues of society by resorting to a political
culture of promoting fear and division amongst the people. The Ketuanan Melayu model has failed. It has
resulted in waste of crucial resources, energy and time and has distracted from the real issues confronting the country. Tan Sri Muhyiddin, the DPM-in-waiting it would seem, suggested that there is a need for a closed door forum for leaders of the BN to develop a common stand; a renewed national consensus grounded on the Social Contract. This is positive step but it should include all political leaders and be premised on the Social Contract that was the foundation of independence. The results of March 8th clearly show that the BN no longer exclusively speaks for the rakyat. Promoting discourse and dialogue is essential, as we must learn to talk and to listen to one another again. The recent pronouncement by the Malay Rulers underscores the urgency with which we need to look at rebuilding the politics of consensus. Communication and trust amongst the people must be reestablished.

The founders envisaged a Government for all Malaysians. Even Tun Dr. Mahathir spoke about it. One of the elements of Vision 2020 as envisaged by Tun Dr. Mahathir Mohamed was the creation of a united Bangsa Malaysia. How can such a vision be achieved if the Government is not willing to listen to the grievances of
a substantial segment of Malaysians? Tun Dr Mahathir Mohamad introduced the idea of Bangsa Malaysia in a speech entitled "The Way Forward". This is one of nine central and strategic challenges of Vision 2020. Although he only mentioned Bangsa Malaysia once, its use had sparked enthusiastic debates. The creation of Bangsa Malaysia is the challenge of establishing a united Malaysian nation with a sense of a common and
shared destiny. This must be a nation at peace with itself, territorially and ethnically integrated, living in
harmony and full and fair partnership, made up of one Bangsa Malaysia with political loyalty to the nation.

Different meanings have been given to that term Bangsa Malaysia. Many believe that it was intended to bolster the non-Malays through the envisioning of a united country where their cultural and religious uniqueness would not be threatened; Tun Dr. Mahathir in fact explicitly mentioned this. On the other hand, some believe that Bangsa Malaysia was just a neat reference to a Malaysia united under Malay or, more appropriately, UMNO hegemony. Whatever the case, I would like to believe that whilst the government of BN has done little other than pay lip-service to the concept, principally by issuing pandering slogans, since Dr Mahathir left, the country will nevertheless in the future move towards a more pluralistic society. The integration of different ethnic groups would occur naturally through the expansion of economic life and through the unintended effects of globalization so much so that ethnicity will be depoliticized. We nonetheless need to actively promote efforts at an institutional level if we want this notion of Bangsa Malaysia to materialize. The political parties making up government may not want to do so for their own short-term interests but as a whole, the people will call for it. This brings us again to the democracy and the Rule of Law. We will not succeed in promoting, a united country and allow for the evolution of Bangsa Malaysia if we do not subscribe to the Rule of Law. We need the openness, freedom and social justice that will be possible only with it in place. and democracy. How do we bring unity to the people if we are not prepared to respect their dignity?

To achieve the aspirations of the New Economic Policy, Bumiputras need to be given thinking tools to participate in the global economy. At present their attention is kept focused, almost on a daily basis, on race related issues even though there are serious issues such as the economy and the lack of trust in the institutions of government to deal with. The obsession with the Ketuanan Melayu Dotrine has in fact destroyed something precious in us. It makes us lose our sense of balance and fairness. When a certain Chinese lady was appointed head of a State Development Cooperation, having served in that Cooperation for 33 years, there were protests from Malay groups because she is Chinese. A new economic vision is necessary, one that is more forward looking in outlook and guided by positive values that would serve to enhance cooperation amongst the races. This will encourage change for the better; to develop new forms of behaviour and shifts of attitudes; to believe that only economic growth will serve social equity; to aspire to a higher standard of living for all regardless of race. We need to meaningfully acknowledge that wealth is based on insight, sophisticated human capital and attitude change. A new dynamics focused on cooperation and competition will spur innovation and creativity.

Some might say that this is a fantasy. I disagree. How do we go about transforming the culture and values of the Bumiputras so that their ability to create new economic wealth can be sustained? By changing our political and legal landscapes with freedom and democracy. Dr Mahathir was right to ask that Malays embrace modernity. He fell short of what we needed by focusing on the physical aspects of modernity. He was mistaken to think all that was needed to change the Malay mindset was science and technology. He should have also promoted the values of freedom, human rights and the respect of the law. If affirmative action is truly benchmarked on the equitable sharing of wealth that is sustainable, then we must confront the truth and change our political paradigm; 40 years of discrimination and subsidy have not brought us closer. There is a huge economic dimension to the Rule of Law and democracy that this government must learn to appreciate.

Relations between Islam, the state, law and politics in Malaysia are complex. How do we manage legal pluralism in Malaysia? Can a cohesive united Bangsa Malaysia be built on a bifurcated foundation of Sharia and secular principles? Will non-Muslims have a say on the operation of Islamic law when it affects the general character and experience of the nation? This is a difficult challenge and the solution has to be found. Leading Muslim legal scholar Abdullah Ahmad an-Na'im is hopeful. He believes that the way forward is to make a distinction between state and politics. He believes that Islam can be the mediating instrument between state and politics through the principles and institutions of constitutionalism and the protection of
equal human rights of all citizens. Whatever the formula, we can only devise a system that rejects absolutism and tyranny and allows for freedom and plurality if we are able to first agree that discourse and dialogue is vital. Democracy and respect for the rights and dignity of all Malaysians is the prerequisite to this
approach.

A compelling argument for a constitutional democracy in Malaysia is that only through such a system will we be able to preserve and protect the traditions and values of Islam and the position of the Malay Rulers. For a peaceful transition to true democracy of this country, one of key issue that requires care is the position of Islam and its role in the political system of the country. In fact I regard this to be of paramount consideration. Although the expression Islamic state is heard from time to time, and whilst it is true that ABIM, PAS and lately UMNO had the concept a key part of their agenda, the areas of emphasis differ and are subject to the contemporary political climate. For reasons too lengthy to discuss now, I would say that the "synthesis of reformist Islam, democracy, social welfare justice and equity " would be sufficient to appease the majority of Muslims in so far as the role of Islam in public life is concerned. This state of affairs
could be achieved peacefully and without tearing the Constitution apart. The progressive elements in PAS, inspired by Dr Burhanuddin Helmi in 1956, are still alive. PAS leaders of today who have carried that torch also make reference to a more accommodating vision of Islam that puts a premium on substantive justice and the welfare of the people as major policy initiatives.

UMNO's approach (or more accurately Dr Mahathir's approach) to Islamic content in public policies was articulated in the early 1990s. This however achieved little in changing the political system. His "progressive Islam "was more nationalistic than PAS, and designed to usher new elements of modernity into Islam. Science and technology were touted as the means to defend Islam and the faith. The approach taken was short on the ideas of human rights and social justice, and the Rule of Law and designed more to convince the rakyat of Islam's compatibility with elements of modernity like science and technology. Anwar Ibrahim, the present opposition leader, articulated a brand of reformist Islam that was more individual centered and liberal. Drawing its humanist thought from the great Muslim scholar, Muhammad Iqbal, Islam Madani gave emphasis on human rights and freedoms. Islam Hadhari came on to the scene just before the 2004 general elections as another form of progressive Islam, possibly inspired by the thinking of another noted scholar, Ibn Khaldun. Unfortunately, nothing much came out of this effort.

Whichever model or line of thought that will find permanence in our political landscape, Islamic aspirations and ideals will certainly become an important component in the realm of public policy. To prevent conflicts and ensure that various beliefs are absorbed and accepted into the political system, it is imperative that no force or compulsion is used. This is where the merit of a government adopting democracy and Rule of Law becomes apparent. The discussions and deliberations of even sensitive and delicate issues will make the participants aware of the value of ideas and the value of peaceful dialogues. Managing disputes through a determined, rules-based process will allow for a peaceful resolution of problems. The tolerance shown by the protagonists in Indonesia over delicate religious issues bodes well for that country and serves as as a useful illustration of what could be. Approached this way, Islam in the context of Malaysian politics will be prevented from being as divisive and as threatening as race politics.

In this, the issue of conflicts of jurisdiction still requires resolution. Our civil courts are denuded of jurisdiction to deal with matters that fall within the jurisdiction of the Sharia Courts. No Court has been given the jurisdiction and power to resolve issues that may arise in both the Sharia Courts and the civil Courts. The present separation of jurisdictions presupposes that matters will fall nicely into one jurisdiction or the other. However, human affairs are never that neat. What happens to the children of a marriage where one party converts to Islam and the other party seeks recourse in the civil Court? Or when the Sharia Court pronounces that a deceased person was a Muslim despite his family contesting the conversion? Or where the receiver of a company is restrained from dealing with a property by a Sharia court order arising out of a family dispute? Where do the aggrieved parties go? I had suggested the establishment of the Constitutional Court, but that plea has fallen on deaf ears.

There is marked increase in the use of harsh draconian measures in dealing with political and social issues. Some people say that groups such as Hindraf advocate violence and therefore justifies the use of such measures. They may have overlooked the fact that violence begets violence. Was not the detention of HINDRAF leaders under the Internal Security Act itself an act of aggression, especially to people who consider themselves marginalized and without recourse? It is time that the people running this country realize that we will not be able to resolve conflicts and differences peacefully if we ourselves do not value peaceful means in dealing with problems. The situation has been aggravated by the absence an even-handed approach in dealing with organizations like HINDRAF. While I applaud the Prime Minister for calling upon the Indian community to reject extremism, should not a similar call be made on the Malay community and Utusan Malaysia? I call on the Prime Minister, both the outgoing and the incoming, to deal with such issues fairly. Start by releasing the Hindraf leaders detained under the ISA. The release would create a window for constructive dialogue on underlying causes of resentment. I also appeal for the release of Raja Petra from his ISA detention. He is a champion of free speech. His writings, no matter how offensive they may be to some, cannot by any stretch of the imagination be seen as a threat to the national security of this country.

The Malays are now a clear majority in numbers. The fear of their being out numbered is baseless; they are not under seige. The institutions of government are such that the Malays are effectively represented, and the there is no way the interest of the Malays can be taken away other than through their own weakness and folly. The BN Government must abandon its reworked concept of the Social Contract and embrace a fresh perspective borne out of discussions and agreements made in good faith with all the communities in this country. It is time for us all to practice a more transparent and egalitarian form of democracy and to recognize and respect the rights and dignity of all the citizens of this country.

At the end of the day, we must ask ourselves what it is that will allow us to protect all Malaysians, including
the Malays? Good governance is about good leadership; and good leadership is all about integrity. We must have leaders of integrity in whom people can place their trust. If there is no integrity in leadership, the form of government is immaterial – it will fail. Integrity in leadership is the starting point to creating a just and fair society. Integrity of leadership does not lie only with the Prime Minister or his cabinet. It needs to permeate through all the organs of government. A key organ of government, the one tasked to protect the rights of the common man against the excesses of government, is the Court. The Rule of Law in a constitutional democracy demands that the Judiciary be protective of the nation's subjects be they, I would say especially, the poor, the marginalized and the minorities. The Courts must act with courage to protect the Constitutionally guaranteed rights of all citizens, even if to do so were to invoke the wrath of the government of the day. Even though not all Judges will rise to be Chief Justice, in they own spheres they must show courage. For example, in PP vs Koh Wah Kuan (2007), a majority bench of the Federal Court chose to discard the doctrine of separation of powers as underlying the Federal Constitution apparently because the doctrine is not expressly provided for in the Constitution. This conclusion is mystifying as surely the court recognizes that power corrupts absolutely and can thus be abused. If the courts are not about to intervene against such excesses who is? Checks and balance are what the separation of powers is about. Surely the apex court is not saying that the courts do not play a vital role in that regard?

The reluctance of the court to intervene in matters involving the Executive is worrying. In Kerajaan Malaysia & Ors v Nasharuddin Nasir, the Federal Court ruled that an ouster clause was constitutional and was effective in ousting the review jurisdiction of the Court if that was the clear intention of Parliament. The apex court so readily embraced the supremacy of parliament even though the Constitution declares itself supreme. There is nothing in the Federal Constitution that explicitly sets out the ability of Parliament to limit the Court's review jurisdiction. The Court could have just as easily held that as the Constitution was the Supreme Law, in the absence of express provisions in the Constitution the Court's review jurisdiction remained intact. Is it not possible that in vesting the judicial authority of the Federation in the High Courts the framers of the Constitution intended the review powers of the Courts to be preserved from encroachment by the Executive and Legislature? In India, the Supreme Court has held on tenaciously to a doctrine of 'basic structure' that has allowed it to ensure the integrity of the democratic process and the Rule of Law. Any attempt to denude the courts of the power to review by amendment of the Constitution has been struck down.

The Rule of Law has no meaning if judges, especially apex Court judges, are not prepared to enter the fray in the struggle for the preservation of human rights and the fundamental liberties. Supreme Court judges in other jurisdictions have done so time and time again. Though it is far less difficult to accommodate the will of the government, that must be resisted at all costs, particularly where justice so demands. Only then can we say that Malaysia is grounded on the Rule of Law. To all our judges I say discard your political leanings and philosophy. Stick to justice in accordance with the law. As Lord Denning reminded us: Justice is inside all of us, not a product of intellect but of the spirit. Your oath is to the Constitution; shield yourself behind it. Without your conviction, democracy is but a concept.

I would like to say more about law, democracy and about our beloved country. But time does not permit. In any event, I have to be careful. The more we say, the more vulnerable we become. But my parting message is this: The people of goodwill must continue to strive to bring about change, so that we can rebuild the trust of all Malaysians. From that trust, we can rebuild the country where we do not live in fear, but in freedom; that the rights of all Malaysians are acknowledged, respected and protected by the system of law that is just and fair. There is no quest more honourable and a struggle more worthy of sacrifice.

Thank you.

Zaid Ibrahim

--
Azmi Shahrin
012-9198557

~~~~~~~~~~~~~~~~~~

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04 November, 2008

Soekarno Pidato di Depan Rakyat Jakarta

Pidato Soekarno

Ini pidato bagian pertama yang disampaikan Bung Tomo tapi ada tambahanya sedikit, agak beda dari yang pertama pada bagian akhirnya

Soekarno - Pidato Penghabisan

Pidato sesaat sebelum pertempuran 10 November 1945 dan terus diulang setiap maghrib selama perang

The Star Online: Nation

Din Merican: the Malaysian DJ Blogger

Che Det

rocky's bru

Anwar Ibrahim

SANG KELEMBAI

Sassy MP

Malaysiakini

BarkingMagpie

AZMI SHAHRIN