Quest for Justice
Zaid Ibrahim
Zaid Ibrahim
(This article is prepared for and presented at the forum on "Constitutional Crisis in Malaysia - Why 2 Menteri Besars in Perak" held on 15th May 2010 at Tropical Inn, Johor Bahru .)
1. The Spirit of the Constitution
2. Emerging Fascist State
3. The Failing Nation State
4. Liberty & Justice for Economic Stability
5. Standing up & Fighting on
1. The Spirit of the Constitution
Our nation was proclaimed by our Father of Independence, Tunku Abdul Rahman, as a sovereign democracy founded upon the principle of liberty and justice; forever seeking the welfare and happiness of its people and the maintenance of just peace amongst nations.For many years, the Constitution has served us well as the principal guarantor of freedom and equality for all Malaysians. This Constitution, in spirit and intention, is embedded with the political vision and hope to ensure that our country is held together by a common bond amongst its citizens, all believing and sharing a common dream of nationhood. This Constitution has served us as an enduring bond between the various ethnic groups in the country; providing an intricate checks-and-balances between the conflicting interests of various groups; and between interests of the individual and interests of the community.
Unfortunately today, I have come to believe that in this country, neither democracy nor the rule of law exists any longer, not at least in the spirit and intent of the Constitution of 1957. Ours today is nothing more than a nation held together by the brute force of government, aided and abetted by an oligarchy that is bent on protecting its vested interests at all costs. As a result of this, this country has then sustained one of the most serious injuries in its history. This is the injury that has been inflicted unto what I call the ‘the Spirit of the Constitution’.
But who then is this ‘Spirit of the Constitution’? The great English Judge, Lord Denning has best described it in his book, The Family Story. The first element in that spirit is the instinct for justice, which leads to us to believe that right, and not might, is the true basis of society. The second is the instinct for liberty, which leads us to believe that it is free will, and not force, which forms the true basis of governance. These instincts for liberty and justice are abstract ideas, but they are very real indeed – they are understood and felt deeply by many fair and right-minded people from all walks of life. The genius of the Spirit of the Constitution however lies in a third practical instinct, which leads us to balance rights with duties, and powers with safeguards, so that neither rights nor powers shall be exceeded or abused.
Justice and liberty is indeed the centre that holds, providing stability against the self-undoing tendencies of human intelligence, ambitions and politics. Might, force and inequities may have built empires and maintained regimes but make no mistake that they have an even more consistent record in destroying what they have built. If these are the principal values of a nation, sooner or later, this nation will come undone.
I note with sadness that this Spirit, as described by the great judge, can now only be perused over from the law books, but not to be found roaming freely on our streets. The day the physical embodiment of this Spirit, our judges, were stripped of their roles as guardians of the Constitution, this country then commenced on its journey down the road of self-undoing. When this ‘judicial power’ was removed from the Federal Constitution and honourable men on the Bench were carted away in shame and ignominy in 1988; we have in effect, turned away from our visions and hopes of ensuring liberty and justice for the people.
From then onwards, judges simply continued to disappoint us with increased regularity. Those in the Federal Court have demonstrated no shame whatsoever when they declared, amongst many declarations, that the concept of the separation of powers is not a feature of our Constitution, that the Speaker of any State Legislature has no authority to determine if a vacancy exists, despite clear wordings to that effect in the State Constitution. Judges today have even gone so far as to say that a Constitutional monarch can practically remove an elected Menteri Besar, notwithstanding the clear expression in the law that the Menteri Besar does not hold office at the pleasure of the King.
Looking back at the birth of the Constitution, I cannot help but ask, how did we get so lost? But then, if I may, this is the Parable of the Spirit: If we understand the spirit as the force that moves the body, a weakened spirit is indeed a lost soul with a sickly flesh. These injuries sustained by the Constitution are indeed potentially fatal to all of us. Our nation-state today is an ailing nation state – its body, vital state institutions – are all in intensive care. We are lost because we are ill, first in spirit, then in physique.
2. Emerging Fascist State
This is what happens after 23 years of Mahathir Mohammad, followed by his prodigy Najib Razak. Democracy has been lost on us. With that, our sense of right and wrong has also faltered miserably. We killed a 14 year-old under blazing gun fire; we have hundreds who died in custody; we have elections that are neither free nor fair. We have newspapers licensed to defame and destroy political opponents. We have a Parliament that prides itself as a destroyer of free speech rather than as defender of the privileges of MPs to speak without fear.
What is it then, this new political order that has emerged? When the spirit is weak, the flesh can only be so willing. Today, the sick body of this nation is medicated on an emerging dangerous political order – it is called fascism. How do I mean by fascism? Let me clarify to you so you can judge by yourself whether all these ring true to your ears.
A fascist state is a state which demands citizens’ loyalty at the expense of their liberty, chiefly by forcing on the people a particular, socially restrictive political principle as the national, state aspiration, in which groups that are associated with superiority are entitled to wield their authority and prevail over groups that are associated with inferiority, effectively rejecting the concept of the equality of all human beings. Fascism has great pretensions for reform and healing, but in truth, it is radically reactionary and will bound people to a dependency habit. In order for fascism to achieve its aim, the might of the state shall take precedence over the rights of the populace, and fear is effectively enforced through the use of unjust laws and other control mechanisms, even outright violence. There are no great balancing acts in a fascist state, the state elites are all the balance you will ever get.
A fascist state will always have a penchant for abusing religious or ethnic identities, where they are moulded into what I would call a culture of supremacism – distorting, deforming and cheapening the sacred core values of our beliefs and cultural traditions beyond all recognition, so that they can be sold off as the ultimate political drug. It certainly plays on fears and anxieties, and when you are frightened enough, the fascists will give you the blue pill to lull you further, or the red pill, to lull you further – it all depends on the current availability of colouring agents you see, which probably depends on the amount of kickbacks the companies of the colouring agents are willing to part with. Certainly, when ethnicity or religiosity is sold off for political power, self-redemption for their dependencies becomes very expensive and almost unattainable. If there is no proper medical intervention, sooner or later, such a nation will end up overdosing on its own self-prescribed medications, whether in blue or red, it does not really matter if you are dead.
To this effect, fascism often will organise governance based on a structure where people are separated and divided into groups, where equality and fairness are denied to all, and rewards are reserved only for the favoured ones. One class of citizens would be organised to be superior to others, with more rights than others. It is essentially a dictatorship that glorifies itself, its leaders and their wives; and deploys reactionary policies that are chauvinistic through the use of force and fear. Carrots for those who say yes; sticks, canes, punches, blows, water-cannons, exile or indefinite detention for those who dare to resist.
The lifeline of fascism is the culture of supremacism, fixated on threats posed by an inferior enemy. Therein lies the ultimate fascist paradox – if an enemy is inherently inferior, how is it then that he becomes a threat? But just think about this: without an enemy, what would a supremacist do, what could a fascist do? All these antics, from the detention ISA to the performances of the Gang Kepala Lembu, are all part of an exercise to manufacture the enemy, because the manufacture of consent is no longer as easy as it used to be. Supremacism is not about affirmative policy or positive discrimination, it is the demand for absolute power without earning them, without just reason. Supremacism is always a fascist’s best friend.
For me, this is the reality of our political leadership today. Like it or not, Malaysia today is indeed an emerging fascist state; the slogan 1Malaysia is all but a ruse. Anyone who opposes the regime of 1Malaysia is a subversive, that convenient enemy who must be destroyed and crushed. Certainly, if the people of this country want change and would like to restore the will of the people, we have to fight this fascism together. We, the common people must stand up to this fascist onslaught. We cannot depend on the rich and powerful for this.
Nevertheless, I am certain that many of us do find it disturbing that small sections of the rakyat are still clinging onto the old regime. What then, should we tell repressed people who do not care or are not sufficiently aware or are simply too frightened? I think we have to hoist up the antennae. We certainly must continue to fight against the multibillion-dollar rent-seeking and corruption ‘industry’, the abuse of power, the violations of rights, the loss of land and homes, the marginalisation of communities, the poor governance, the vanity of our leaders and their family members. But strategically, I believe we must also begin to aggressively communicate on the long-term impacts of such governance on a healthy nation. Our quest for justice must ultimately be able to send the message loud and clear that the mismanagement of a nation-state will eventually end it as a failed state. A country that has compromised the Spirit of the Constitution opens up the path towards becoming a failed state. A fascist state guarantees its own failure, because there are no rehabs for fascists.
3. The Failing Nation State
But then, can a well-functioning state begin to fail? Allow me then to share with you a story.
Once upon a time, there was this country, which at the time of its independence met many of the requirements of a modern nation state. Even a few decades before its independence, it was impressive on many accounts. Its legislature began to be elected before the 1920s; women began to vote even before colonisation ended, while improvements in public health more than doubled its population between the 1920s and the 1940s. It has been noted that this country’s levels of physical and human capital exceeded most other nations’ in the region and that it was not seen as having fundamental economic weaknesses relating to “geography, natural resources or other physical endowments”.
A report commented that if a composite index of human development were to be constructed in 1938 on the basis of per capita GDP, demographic data and educational enrolments among others, this country would be ranked second in its continent. Even two other states with higher per capita GDP, could not outperform this one state in terms of education enrolment rates. Indeed, this concerned nation has had a long tradition in education – its two oldest universities until today are still in dispute as to which one of them deserves the title of the continent’s oldest university – one established in 1595 but was temporarily shut down in the 18th century, another established in 1611 and had only been interrupted during World War 2.
By the time this nation reached independence, economists have noted with respect that the country’s “civil institutions were comparatively well developed… it possessed a reasonably democratic political system… Its judiciary and legal system were quite well-developed and somewhat independent. Its press was open and vigorous. Finally... [it] possessed ample agricultural land to sustain several decades of rapid agricultural growth.”
Thus in the 1950s, this country continued to register a higher income per capita than other states in the continent, with the exception of four states, one of which was, Malaya. Even then, annual fluctuations showed that its income per capita would occasionally surpass that of Malaya’s. It was not until between the 1960s and the 1970s that this young entity Malaysia, actually managed to take them over with certainty. Poor Hong Kong women came here to work as domestic helpers in the homes of their rich. Incidentally, the country had also built Asia’s first commercial airline and it of course, continued to house some of its finest universities. This prosperity then continued well until the early 1960s.
Then, something happened.
One neighbouring nation after another moved past it in income per capita. Taiwan and South Korea began to outdo it in the 1960s, Thailand in the second half of the 1970s, Indonesia around the mid-1980s and finally China in the 1990s. Soon, it is predicted, even Vietnam may overtake this country in terms of per capita income. There were large fiscal deficits, rapid inflations, and it was simply failing in attracting high levels of foreign direct investments. Its economy began to be in a state of decline. The business environment was described by a local economist to be lacking in the “stability of the rules” and “enforcement of these rules”.
In wake of the 1997 Asian Financial Crisis, its pride and joy, the national airline, became one big corporate failure, was entered into receivership and had to fully cease operations to Europe and the Middle East. By the end of the 20th century, in East Asia, its income per capita exceeded only Vietnam, Laos, Cambodia, North Korea and Myanmar. This glum was painted by two scholars: “state weakness is manifest in uncollected taxes and uncontrolled crime, bloated bureaucracies and denuded forests, low teacher salaries, and high emigration rates.”
Today, this country suffers a mass exodus of its workforce of varying skills – doctors, engineers, nurses, entertainers, waiters, helpers – to North America, Europe, the Middle East and of course to East Asian countries like Hong Kong, where many of their women work as domestic helpers. It is a good thing that despite of it all, unlike us, the country’s workforce continue to speak an international language with a high level of fluency, allowing around 11 percent of its population to be abroad, remitting funds for their families that form more than 10 percent of its GDP annually – in 2008, this was close to US$ 16 billion . This is what the nation is forced to survive on today.
As for its civil and state institutions, the same local economist has noted, “even the courts of law, are so weak and compromised by corruption that the rule-of-law, or its figment, clings for dear life,” on the inaugural oath of each new head of state to uphold the law, for there is absence in institutional backup in its legislature and judiciary. Extra judicial killings and forced disappearances are worryingly high, commonly targeted at dissident political leaders and activists; but even journalists and the clergy have not been spared. The death toll from 2006 to 2007 alone was reportedly to be more than 270 persons in a country of 90 million.
I think we all by now could already guess the country’s name: the Republic of the Philippines. And we all know what happened. One executive Marcos arose in their midst in the 1960s and stayed on until 1986, when the people forced him and his family to flee, reportedly with 300 crates of prized possessions containing cash, jewels, artwork, documents and other items. Some alleged that they even took gold bricks with them, or so the stories went. He is now gone and dead, but neither the country has fully recovered nor the billions have been fully recovered.
4. Liberty & Justice for Economic Stability
It is in fact fairly easy for a fit nation to start failing, lots of other countries have done it before, not just the Philippines. Malaysia too today, is an ailing, failing nation state. We could perhaps choose to go all the way then, since our leaders have at times insinuated that too much democracy, openness and liberty may be a bad thing for a country, as if too much autocracy, oligarchy or oppression is actually good for a country. But while they have implied that more freedom may result in economic instability, they will never tell you for instance, how more democracy has actually revived South Korean society. South Korean reformation movement poured out on the streets of Gwangju on May 18, 1980 and finally won the country back in Seoul in 1987 – seven long years to topple a military dictatorship, with all the blood that we are often made to associate with more economically-challenged nations. Today in Asia, the South Korean economy is only second to Japan and yet it is not uncommon to see peaceful assemblies and protests taking place on the streets of Seoul, amid tall skyscrapers, beautiful parks and clean streets.
Our leaders will also not want us to appreciate the fact that even Indonesia, a decade after its reformation, has now begun to show signs of healing. Based on Transparency International’s annual Corruption Perceptions Index , its score had steadily climbed from 2.3 in 2007 to 2.6 in 2008 to 2.8 in 2009, as Malaysia steadily slipped from 5.1 in 2007 and 2008 to 4.5 in 2009. In terms of international ranking, Indonesia has also achieved the greatest improvement amongst ASEAN countries, as it gradually climbed from No.143 in 2007 to No. 126 in 2008 and finally to No. 111 in 2009 as Malaysia dipped (again) from No. 43 in 2007 to No. 47 in 2008 to No. 56 in 2009 – the fall of nine places making us as ‘the highest achiever of going backwards in terms of corruption perceptions’ in the ASEAN region during 2008-2009.
So you see, it is really not that difficult to be a failed nation; you can have a 3, 6, 9 or even a 12-step programme for this. But the programme tends to always begin with the same first step – executive interference on the legislature and judiciary, which disrupts the delivery of justice and liberty, resulting in compromised legal and judicial institutions. Once these institutions are done with, all things can be up for sale – your money, your land, your life, even. Dictators certainly recognise that an assault on the Spirit of the Constitution is their way to go. That infamous M – Marcos I mean, when the 1935 Constitution denied him a third term in office, he simply declared martial law which suspended the country’s Constitution altogether in 1972. He had it then replaced with a new version which granted him a term of six years with no limit to the number of terms. By breaking the Spirit, this is really how you break a body.
Similarly, for a reforming country, the restoration of the Spirit calls for the restoration for justice and liberty. South Korea’s newfound freedom today is filled by state-sponsored foundations working on to promote just that – the May 18 Foundation, the South Korean Democracy Foundation, the South Korean Human Rights Foundation. I personally cannot wait to see such foundations see the light of day in this country.
5. Standing up & Fighting on
In the meantime then, we have to stand up against our elites and oligarchs who are deluding themselves into supporting this government by saying that they are doing so for the sake of their Bangsa, Negara and Agama. The truth is they are just protecting their positions and wealth. I say to them enjoy your wealth while you can, but don’t ever try to justify your lack of courage, your greed and hunger for power by claiming that you know what is good for the people. You don’t know. The people of Malaysia will decide what is good for them.
This fight for justice must come from all quarters of our society. The opposition parliamentarians are under siege today. Those of lesser will, will cross over to support the BN government; those remaining standing are bullied by the majority, resulting in the impossibility of proper debates on policies and the law. The Standing Orders are used indiscriminately to punish freedom of speech by the parliamentarians and to scuttle them from speaking on issues that the people want to hear. The Police continue to harass the Opposition parties – already 15 opposition leaders are being questioned on possible charges of sedition; yet UMNO leaders spout racist remarks on a daily basis with impunity. Even ceramah are frequently not allowed, and even if permitted, they would sometimes be stopped halfway depending on what was said by the speakers. BN ceramah, on the other hand, are given free rein. Nothing was done to stop those blatant lies about me spewing forth from the speeches of UMNO leaders and their newspapers and TVs – while we had all wanted to debate on policy and governance, they produced for you poorly doctored photographs – just imagine how low elections standards have sunk in this country, they could not even doctor photographs decently! The people of Malaysia must be brave to say no this evil government. The dirty and scrupulous politics started by Mahathir must come to an end.
Pakatan Rakyat will not promise the earth and the moon if it comes to power. But I can say one thing for sure. We will not destroy this country by our greed, we will respect human rights and dignity, we will take more care of the marginalised and the poor, we will encourage a free media and we will nurture democracy back to life. Equally important – you are all free to monitor us. And slowly but surely then, persons of goodwill, honour and integrity will rule again in our courts, our civil service, our law enforcement force. Parliament will be the place where we can bare the truth about the state of the country and its finances – our military procurements, our oil and gas wells and all of Petronas’ affairs. We are worth your sacrifice and support. We will breathe again the Spirit into the body of this nation.
So let us tell to all the fence sitters out there: Justice must be delivered and seen to be delivered in this country, or else, this Spirit will soon leave this battered body of a failing nation-state to rot. I think we can effectively call this, suicide (and it is illegal in this country). The only way forward for us now is to continue healing and nourishing this ailing Spirit of the Constitution, so it could live a full life again. Who again is this Spirit of the Constitution? Justice, liberty and equity are in fact more than instincts of the Spirit of the Constitution – they are the Spirit of the Constitution – because when all things considered, it is instinct that creates and drives meaning into any spirit, effectively giving it consciousness.
Foot Notes:
1.Please see Nelson, Robert H (2007) The Philippine Economic Mystery.
Available at http://www.econ.upd.edu.ph/dp/index.php/dp/article/viewFile/24/27
2.Anne Booth, “Did It Really Help to be a Japanese Colony?: East Asian Economic Performance in Historical Perspective,” Asia Research Institute, Working Paper No. 43 (June 2005), p. 21. Cited in 1.
3.Arsenio Balisacan and Hal Hill, “An Introduction to the Key Issues,” in Balisican and Hill, eds., The Philippine Economy: Development, Policies, and Challenges (New York: Oxford University Press, 2003), p. 3. Cited in 1.
4.Please see 1.
5.Raul Fabella, “The J2K Crisis and the Economy: The Broader Context,” School of Economics, University of the Philippines, Discussion Paper No. 0012 (December 2000), pp. 2-3. Cited in 1.
6.Patricio N. Abinales and Donna J. Amoroso, State and Society in the Philippines (Pasig City, Philippines: Anvil, 2005), pp. 1-2. Cited in 1.
7.http://www.forbes.com/feeds/afx/2008/10/13/afx5548834.html
8.http://www.ipsnews.net/news.asp?idnews=40582
9.http://news.google.com/newspapers?nid=1129&dat=19860322&id=tVQNAAAAIBAJ&sjid=Q24DAAAAIBAJ&pg=3795,6490037
10.http://www.manilatimes.net/index.php/component/content/article/86-special-reports/11955-messy-record-of-pcggs-failure-to-recover-wealth; http://www.wsws.org/articles/1999/jul1999/phil-j20.shtml
11.http://www.transparency.org./
12.http://opinion.inquirer.net/inquireropinion/columns/view/20090615-210479/Remembering-the-1973-and-1986-turbulence; http://en.wikipedia.org/wiki/Constitution_of_the_Philippines.
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