No Cowardly Past

Tengku Razaleigh Hamzah

James Puthucheary lived what is by any measure an extraordinary and eventful life. He was, among other things, a scholar, anti-colonial activist, poet, political economist and lawyer. The thread running through these roles was his struggle for progressive politics in a multiracial society. His actions were informed by an acute sense of history and by a commitment to a more equitable and just Malaysia. James was concerned about economic development in a way that was Malaysian in the best sense. His thinking was motivated by a concerned for socioeconomic equity and for the banishment of communalism and ethnic chauvinism from our politics.

The launch of the Second Edition of this collection of James Puthucheary’s writings, No Cowardly Past, invites us to think and speak about our country with intellectual honesty and courage.

Let me put down some propositions, as plainly as I can, about where I think we stand. We

1) Our political system has broken down in a way that cannot be salvaged by piecemeal reform.

2) Our public institutions are compromised by politics (most disturbingly by racial politics) and by money. This is to say they have become biased, inefficient and corrupt.

3) Our economy has stagnated. Our growth is based on the export of natural resources. Productivity remains low. We now lag our regional competitors in the quality of our people, when we were once leaders in the developing world.

4) Points 1) -3), regardless of official denials and mainstream media spin, is common knowledge. As a result, confidence is at an all time low. We are suffering debilitating levels of brain and capital drain.

Today I wanted to share some suggestions on how we might move the economy forward, but our economic stagnation is clearly not something we can tackle or even discuss in isolation from the problem of a broken political system and a compromised set of public institutions.

This country is enormously blessed with talent and natural resources. We are shielded from natural calamities and enjoy warm weather all year round. We are blessed to be located at the crossroads of India and China and the Indonesian archipelago. We are blessed to have cultural kinship with China, India, the Middle East and Indonesia. We attained independence with an enviable institutional framework. We were a federation with a Constitution that is the supreme law of the land, a parliamentary democracy, an independent judiciary, a common law system and an independent civil service. We had political parties with a strong base of support that produced talented political leadership.

We have no excuse for our present state of economic and social stagnation. It is because we have allowed that last set of features, our institutional and political framework, to be dismantled, that all our advantages are not better realized.

So it makes little sense to talk glibly about selecting growth drivers, fine-tuning our industrial or trade policy, and so on, without acknowledging that our economy is in bad shape because our political system is in bad shape.

A case in point is the so called New Economic Model. The government promised the world it would be announced by the end of last year. It was put off to the end of this month. Now we are told we will be getting just the first part of it, and that we will be getting merely a proposal for the New Economic Model from the NEAC. Clearly, politics has intruded. The NEM has been opposed by groups that are concerned that the NEM might replace the NEP. The New Economic Model might not turn out to be so new after all.

The NEP

The irony in all this is that there is nothing to replace. The NEP is the opposite of New. It is defunct and is no longer an official government policy because it was replaced by the New Development Policy (another old “new” policy) in 1991. The “NEP” was brought back in its afterlife as a slogan by the leadership of UMNO Youth in 2004. It was and remains the most low-cost way to portray oneself as a Malay champion.

Thus, at a time when we are genuinely need of bold new economic measures, we are hamstrung by by the ghost of dead policies with the word New in them. What happens when good policy outlives its time and survives as a slogan?

The NEP was a twenty year programme. It has become, in the imaginations of some, the centre of a permanently racialized socio-economic framework.

Tun Ismail and Tun Razak, in the age of the fixed telephone (you had to call through an operator), thought twenty years would be enough. Its champions in the age of instant messaging talk about 100 or 450 years of Malay dependency.

It had a national agenda to eradicate poverty and address structural inequalities between the races for the sake of equity and unity. The Malays were unfairly concentrated in low income sectors such as agriculture. The aim was to remove colonial era silos of economic roles in our economy. It has been trivialized into a concern with obtaining equity and contracts by racial quotas. The NEP was to diversify the Malay economy beyond certain stereotyped occupations. It is now about feeding a class of party- linked people whose main economic function is to obtain and re-sell government contracts and concessions.

The NEP saw poverty as a national, Malaysian problem that engaged the interest and idealism of all Malaysians. People like James Puthucheary were at the forefront of articulating this concern. Its present-day proponents portray poverty as a communal problem.

The NEP was a unity policy. Nowhere in its terms was any race specified. It has been reinvented as an inalienable platform of a Malay Agenda that at one and the same time asserts Malay supremacy and perpetuates the myth of Malay dependency.

It was meant to unite our citizens by making economic arrangements fairer, and de-racializing our economy. In its implementation it became a project to enrich a selection of Malay capitalists. James Puthucheary had warned, back in 1959, that this was bound to fail. “The presence of Chinese capitalists has not noticeably helped solve the poverty of Chinese households.. Those who think that the economic position of the Malays can be improved by creating a few Malay capitalists, thus making a few Malays well-to-do, will have to think again. “

The NEP’s aim to restructure society and to ensure a more equitable distribution of economic growth was justified on principles of social justice, not claims of racial privilege. This is an important point. The NEP was acceptable to all Malaysians because its justification was universal rather than racial, ethical rather than opportunistic. It appealed to Malaysians’ sense of social justice and not to any notion of racial supremacy.

We were a policy with a 20 year horizon, in pursuit of a set of measurable outcomes. We were not devising a doctrine for a permanent socio-economic arrangement. We did not make the damaging assumption of the permanently dependent Malay.

Today we are in a foundational crisis both of our politics and of our economy. Politically and economically, we have come to the end of the road for an old way of managing things. It is said you can fool some of the people some of the time, but not all of the people all the time. Well these days the time you have in which to fool people is measured in minutes, not years.

The world is greatly changed. The next move we must make is not a step but a leap that changes the very ground we play on.

The NEP is over. I ask the government to have the courage to face up to this. The people already know. The real issue is not whether the NEP is to be continued or not, but whether we have the imagination and courage to come up with something which better addresses the real challenges of growth, equity and unity of our time.

At its working best the NEP secured national unity and provided a stable foundation for economic growth. Taken out of its policy context (a context that James helped frame) and turned into a political programme for the extension of special privilege, it has been distorted into something that its formulators, people such as the late Tun Razak and Tun Ismail, would have absolutely abhorred: it is now the primary justification and cover for corruption, crony capitalism and money politics, and it is corruption, cronyism and money politics that rob us and destroy our future.

No one who really cares about our country can approve of the role the NEP now plays in distorting the way we think about the economy, of our people, of our future, and retarded our ability to formulate forward-looking economic strategy.

The need for a wholistic approach to development based on the restoration and building of confidence.

We need a wholistic approach to development that takes account of the full potential of our society and of our people as individuals. We need an approach to development that begins with the nurturing and empowerment of the human spirit. Both personally and as a society, this means we look for the restoration of confidence in ourselves, who we are, what we are capable of, and the future before us.

I return to the question of the Middle Income Trap that I alluded to some time ago. I am glad that notion has since been taken up by the Government.

The middle income trap is a condition determined by the quality of our people and of the institutions that bind them. It is not something overcome simply by growing more oil palm or extracting more oil and gas. Our economic challenge is to improve the quality of our people and institutions. Making the break from the middle-income trap is in the first place a social, cultural, educational and institutional challenge. Let me just list what needs to be done. Before we can pursue meaningful economic strategy we need to get our house in order. We need to:

1) undertake bold reforms to restore the independence of the police, the anti-corruption commission and the judiciary. Confidence in the rule of law is a basic condition of economic growth.

2) reform the civil service

3) wage all out war on corruption

4) thoroughly revamp our education system

5) repeal the Printing Presses Act, the Universities and Colleges Act, the ISA and the OSA. These repressive laws only serve to create a climate of timidity and fear which is the opposite of the flourishing of talent and ideas that we say we want.

6) Replace the NEP with an equity and unity policy (a kind of “New Deal”) to bring everyone, regardless of race, gender, or what state they live in and who they voted for, into the economic mainstream.

These reforms are the necessary foundation for any particular economic strategies. Many of these reforms will take time. Educational reform is the work of many years. But that is no excuse not to start, confidence will return immediately if that start is bold. As for particular economic strategies, there are many we can pursue:

· We need to tap our advantage in having a high savings rate. Thanks to a lot of forced savings, our savings rate is about 38%. We need more productive uses for the massive funds held in EPF, LTH, LTAT and PNB than investment in a low yielding stock market in which they are already over-represented. One suggestion is to make strategic investments internationally in broad growth sectors such as minerals. Another is that we should use these funds to enable every Malaysian to own their own home. This would stimulate the construction sector with its large multiplier of activities and bring about a stakeholder society. A fine example of how this is done is Singapore’s use of savings in CPF to fund property purchases.

· The Government could make sure that the the land office and local government, developers and house-buyers are coordinated through a one-stop agency under the Ministry of Housing and and Local Government. This would get everyone active, right down to the level of local authorities. The keys to unleashing this activity are financing and a radical streamlining of local government approvals.

· We have been living off a drip of oil and cheap foreign labour. Dependence on these easy sources of revenue has dulled our competitiveness and prevented the growth of high income jobs. We need a moratorium on the hiring of low skilled foreign labour that is paired with a very aggressive effort to increase the productivity and wages of Malaysian labour. Higher wages would mean we could retain more of our skilled labour and other talent.

· Five years ago I called for a project to make Malaysia an oil and gas services and trading hub for East Asia. Oil and gas activities will bring jobs to some of our poorest states. We should not discriminate against those states on the basis of their political affiliations. No one is better placed by natural advantage to develop this hub. Meanwhile Singapore, with not a drop of oil, has moved ahead on this front.

· We should ready ourselves to tap the wealth of the emerging middle class of China, India and Indonesia in providing services such as tourism, medical care and education. That readiness can come in the form of streamlined procedures, language preparation, and targeted infrastructure development.

These are just some ideas for some of the many things we could do to ensure our prosperity. Others may have better ideas.

Conclusion

We are in a foundational crisis of our political system. People can no longer see what lies ahead of us, and all around us they see signs of decaying institutions. The country will continue to haemorrhage wealth and talent

To reverse that exodus we must restore confidence in the country. We do not get confidence back with piecemeal economic measures but with bold reforms to restore transparency, accountability and legitimacy to our institutions. Confidence will return if people see decisive leadership motivated by a sincere concern for the welfare of the country. The opposite occurs if they see decisions motivated by short term politics. Nevermind FDI, if Malaysians started investing in Malaysia, and stopped leaving, or started coming back, we would see a surge in growth.

In the same measure we must also break the stranglehold of communal politics and racial policy if we want to be a place where an economy driven by ideas and skills can flourish. This must be done, and it must be done now. We have a small window of time left before we fall into a spiral of political, social and economic decline from which we will not emerge for decades.

This is the leap we must make, but to make that leap we need a government capable of promoting radical reform. That is not going to happen without political change. We should not underestimate the ability of our citizens to transcend lies, distortions and myths and get behind the best interest of the country. In this they are far ahead of our present leadership, and our leadership should listen to them. razaleigh.com

*Speech on the launch of the Second Edition of No Cowardly Past: James Puthucheary, Writings, Poems, Commentaries

Ku Li says Federal Government is acting like a ‘Godfather’

By Neville Spykerman

KUALA LUMPUR, Feb 25 — Tengku Razaleigh Hamzah(picture) says the federal government is behaving like a “Godfather” in refusing to pay oil royalties to Kelantan, in remarks suggesting the Kelantan prince and veteran Umno man is bent on continuing to speak out for his home state against the Najib administration.

He also pointed out in an interview with The Malaysian Insider that oil disputes had sparked the Iranian Islamic revolution in 1979 and warned the federal government against denying the wishes of the public by depriving states of oil royalties.

“Ayatollah Khomeini was 91, when he led the uprising against the Shah over 30 years ago,” said the Gua Musang MP, who added the revolution was not only because the Iranian monarch Mohammad Reza Pahlavi was a dictator but because he was misusing the country’s oil revenue.

The 72-year-old Kelantan prince, who is better known as Ku Li, was quick to dismiss any suggestions that he wanted to lead any kind of revolution in Malaysia.

But he continues to persist in his attacks against the federal government, and this has clearly caused some tension with his Umno colleagues.

Today, Tan Sri Muhyiddin Yassin questioned Tengku Razaleigh’s loyalty to Umno and accused the Kelantan prince of trying to confuse the public over the oil royalty dispute.

He also defended the federal government’s refusal to pay oil royalties claimed by Kelantan, saying that it was in “accordance with law.”

In yesterday’s interview, Tengku Razaleigh said he was moving to establish a bi-partisan Federation Caucus in Parliament to examine ‘unhappy’ federal-state relations, including the dispute over oil royalties.

The federal government and the PAS-ruled Kelantan government are locked in a dispute over whether the state is entitled to five per cent royalty for oil extracted off its waters.

The Umno veteran has broken ranks with his party to weigh-in on the side of the state government by insisting Kelantan was entitled to the payments according to the Petroleum Development Act .

Tengku Razaleigh said the Federation of Malaya Agreement was signed in 1948 while Malaysia was formed in 1963, and a review was overdue.

“The Federal Government is behaving like a Godfather even though their power comes from the 13 states,” he said in likening Putrajaya’s heavy-handedness to that of the head of a criminal organization.

He added it was not only the opposition Pakatan Rakyat (PR) led states that were unhappy with the Federal Government but also mentris besar of some Barisan Nasional (BN) states.

Despite his campaign against the federal government, Tengku Razaleigh said that Umno had nothing to fear because he is, and remains, a life member of the party.

“I am not a scheming fellow unlike some,” he said, adding a caucus was only a discussion group and a conduit for new ideas which is common in modern democracies.

He said the caucus would not be a voting bloc to oppose the government.

60 per cent funding ‘diverted’

By Jacob Achoi

MACC exposes abuse, flaw in spending of allocations for certain projects in Sarawak

KUCHING: The Malaysian Anti-Corruption Commission (MACC) Sarawak has uncovered government projects in the state where up to 60 per cent of their funding were diverted elsewhere.This startling finding was revealed by MACC deputy chief commissioner (prevention) Datuk Zakaria Jaffar here yesterday, but he did not divulge the extent of such abuses.

“Based on the investigations the Sarawak MACC carried out on specific and real cases (projects), only about 40 per cent of the allocations were spent while the remaining 60 per cent is ‘bocor’ (leaked out),” he said.

He said this at a press conference after closing a corruption prevention seminar at a hotel here.

State MACC director Samsiah Abu Bakar and Chief Minister’s Department Human Resource Management Unit principal assistant director Malcolm Yong were among those present.

According to Zakaria, the investigations were carried out on some completed projects between 2002 and last year.

Without disclosing where the projects were and the number of projects investigated, he said they included roads, low-cost houses and mosques.

Zakaria pointed out that while some projects were poorly completed, there were others that never took-off although payment was made.

“When we talk about development projects in the state, there are many cases of fake claims, whether it involves the officers or the contractors,” Zakaria pointed out.

He also told reporters that there were instances whereby contractors got allocations from members of parliament (MPs) and assemblymen for the same projects.

He explained that a project might cost about RM15,000, but the contractor would bid for that amount from both the MP and the assemblyman, thus the contractor would earn 100 per cent profit.

He said the MACC from next year would conduct a seminar for contractors and also MPs and assemblymen.

He suggested that the Sarawak MACC hold such seminars with the state elected representatives, both MPs and assemblymen next year, on allocation for development projects.

Zakaria also urged the public to help MACC fight corruption, adding that the commission could not fight graft all alone.

He said MACC would embark on education to inform the public the importance of their role to help fight graft.

Samsiah, when asked at the press conference whether the state MACC was also investigating ‘high profile’ cases, replied: “Just wait.”

She also said the seminar with the elected representatives from the state would be held from next year.

Yong, meanwhile, pointed out that the state had received a clean bill of financial health from the auditor-general for seven consecutive years.

He said even though there were projects that did not meet the specifications and criteria, the overall picture of the state development projects, both federal and state projects, were completed satisfactorily.

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Umno losing faith in Barisan partners

KUALA LUMPUR, Oct 3 — Umno’s patience and confidence with the current power-sharing agreement with its partners in Barisan Nasional is wearing thin, judging by sentiments expressed during a closed-door retreat in Janda Baik.

During this rare three-day gathering of Umno divisions, which ended yesterday, a common refrain heard was that Umno should be less generous in giving up Malay-majority seats to representatives of MCA, MIC, Gerakan and other component parties.

The general view among division chiefs was that the component parties were much weaker than Umno and would not be able to swing votes from the non-Malays or the Malays.

In contrast, a strong Umno was better placed to win in Malay-majority seats.

The Malaysian Insider understands that party president Datuk Seri Najib Razak and senior party officials who attended the retreat — aimed at boosting the morale of grassroots leaders — were non-committal on the request for Umno to be less charitable in seat allocation with BN component parties.

If they do agree, it would represent a major departure from the power-sharing agreement that has been the hallmark of the BN coalition, and could be the death knell of MCA, MIC, PPP and Gerakan — political parties which have been allowed to field candidates in Malay-majority seats across Peninsular Malaysia.

Several Umno officials who attended the retreat told The Malaysian Insider that the most important consideration should be to field a candidate who can enhance the possibility of victory at the next general election.

“If a seat has 55 or 60 per cent Malay voters, it makes sense to field an Umno candidate. In the last election, we gave seats in Perak and Selangor to other parties and they were not able to deliver.

"These parties still have internal issues and will not be able to deliver the votes from the non-Malays. So it will be better if an Umno candidate is fielded to try and get the maximum possible support from Malay voters,” said an official, who requested anonymity due to the retreat being a closed-door affair.

During the retreat, officials were also in agreement that Umno’s/BN’s fortunes rested on the ruling party strengthening its standing among Malay voters — a backhanded acknowledgment that it was not pinning much hopes on getting support from non-Malays at the next general election.

This sentiment is consistent with the growing right-wing tendencies that party officials have exhibited in recent months.

There was little substantive discussion on how the party can reach out to Chinese and Indians who Umno officials have alienated in recent months.

Still, the mood during the retreat was one of optimism with Kelantan Umno declaring that it would be able to snare the state from PAS at the next polls. PAS has been helming the state since 1990 but Umno officials from Kelantan believe that the momentum is swinging their way.

Also confident was Perak’s Datuk Zambry Abdul Kadir. Beneficiary of a power grab, he was certain that Umno/BN would be able to hold on to the state.

Less hopeful about their future prospects were Umno representatives from Penang and Selangor.

The NEP is over. We need a New Deal

This talk was delivered on July 10, 2009, at HELP University College, Damansara, Kuala Lumpur to a gathering of PR Consultants. I was asked to address the topic “Najib’s 100 Days”


razaleigh.com




1. Thank you for inviting me to address you. It’s a pleasure to be here, and to learn from you. You have asked me to talk about Najib’s First 100 Days, and this lecture is in a series called Straight Talk. I shall indeed speak plainly and directly.

2. Let me begin by disappointing you. I am not going to talk about Najib’s First 100 Days because it makes little sense to do so.

3. Our governments are brought to power for five year terms through general elections. The present government was constituted after March 8, 2008 and Datuk Seri Najib Tun Razak’s tenure as Prime Minister resulted from a so-called “smooth transfer of power” between the previous Prime Minister and himself that took a somewhat unsmooth twelve months to carry out. During those months, Najib took on the de facto leadership role domestically while Abdullah warmed our international ties. The first 100 days of this government went by unremarked sometime in June last year.

4. Not only is it somewhat meaningless to talk about Najib’s First 100 days, such talk buys into a kind of political silliness that we are already too prone to. It has us imagine that the present government started work on April 2 and forget that it commenced work on March 8 last year and must be accountable for all that has been done or not done since then. It has us forget that in our system of parliamentary, constitutional democracy, governments are brought to power at general elections and must be held accountable for promises made at these elections. It leads us to forget that these promises, set out in election manifestos, are undertaken by political parties, not individuals, and are not trifles to be forgotten when there is a change of individual.


5. It is important that we remember these things, cultivate a more critical recollection of them, and learn to hold our leaders accountable to them, so that we are not perpetually chasing the slogan of the day, whether this be Vision 2020, Islam Hadhari or 1Malaysia. As PR Professionals, you would see my point immediately. Slogans without substance undermine trust. That substance is made up of policies that have been thought through and are followed through. That substance is concrete and provided by results we can measure.

6. Whether or not some of our leaders are ready for it, we are maturing as a democracy. We are beginning to evaluate our governments more by the results they deliver over time than by their rhetoric. As our increasingly well-educated and well-travelled citizens apply this standard, they force our politicians to think before they speak, and deliver before they speak again. As thinking Malaysians we should look for the policies, if any, behind the slogans. What policies are still in place and which have we abandoned? What counts as policy and who is consulted when it is made? How is a proposal formulated and specified and approved before it becomes policy, and by whom? What are the roles of party, cabinet, King and Parliament in this process? Must we know what it means before it is instituted or do we have to piece it together with guesswork? Do we even have a policy process?

7. The mandate Najib has taken up is the one given to Barisan Nasional under Abdullah Badawi’s leadership. BN was returned to power in the 12th General Elections on a manifesto promising Security, Peace and Prosperity. It is this manifesto against which the present administration undertook to be judged. The present government inherits projects and policies such as Islam Hadhari and Vision 2020. If these are still in place, how do they relate to each other and to 1 Malaysia? How do we evaluate the latest slogan against the fact of constitutional failure in Perak, the stench of corruption in the PKFZ project and reports of declining media freedom? What do we make of cynical political plays on racial unity against assurances that national unity is the priority?

8. It is not amiss to ask about continuity. We were told that the reason why we had to have a yearlong ‘transfer of power’ to replace the previous Prime Minster was so that we could have such policy continuity. The issues before the present BN government are not transformed overnight with a change of the man at the top.

9. Let me touch on one issue every Malaysian is concerned with: security. The present government made the right move in supporting the establishment of the Royal Commission to Enhance the Operations and Management of the Police in 2004. Responding to the recommendations of the Royal Commission, the government allocated the PDRM RM8 billion to upgrade itself under the 9th Malaysia Plan, a tripling of their allocation under the 8th Malaysia Plan.

10. Despite the huge extra amounts we are spending on policing, there has been no dent on our crime problem, especially in the Johor Bahru area, where it continues to make a mockery of our attempts to develop Iskandar as a destination for talent and investment. Despite spending all this money, we have just been identified as a major destination for human trafficking by the US State Department’s 2008 Human Rights Watch. We are now in the peer group of Sudan, Saudi Arabia and North Korea for human trafficking. All over the world the organized cross-border activity of human trafficking feeds on the collusion of crime syndicates and corrupt law enforcement and border security officials. Security is about more than just catching the criminals out there. It is also about the integrity of our own people and processes. It is above all about uprooting corruption and malpractice in government agencies, especially in law enforcement agencies. I wish the government were as eager to face the painful challenge of reform as to spend money. The key recommendation of the Royal Commission was the formation of an Independent Police Complaints and Misconduct Commission. That has been shelved.

11. Royal Commissions and their findings are not to be trifled with and applied selectively. Their findings and recommendations are conveyed in a report submitted to the King, who then transmits them to the Government. Their recommendations have the status of instructions from the King. The recommendations of the Royal Commission on the Police have not been properly implemented. The Royal Commission of Inquiry into the Lingam Video clip might as well not have been conducted, because its findings have been completely ignored. Both Commissions investigated matters fundamental to law and order in this country: the capability and integrity of the police and of the judiciary. No amount of money thrown at the PDRM or on installing CCTV’s can make up for what happens to our security when our law enforcers and our judges are compromised.

12. Two Royal Commissions undertaken under the present government unearthed deep issues in the police and the judiciary and made recommendations with the King’s authority behind them, and they have been ignored. The public may wonder if the government is committed to peace and security if it cannot or will not address institutional rot in law enforcement and the rule of law.

13. The reform of the police and the judiciary has been on the present government’s To Do list for more than five years.

14. I want to reflect now upon where we stand today and how we might move forward. We are truly at a turning point in our history. Our political landscape is marked with unprecedented uncertainty. Nobody knows what the immediate future holds for us politically. This is something very new for Malaysians. The inevitability of a strong BN government figured into all political and economic calculations and provided a kind of stability to our expectations. Now that this is gone, and perhaps gone for good, we need a new basis for long-term confidence. No matter who wins the next General Election, it is likely to be with a slim majority. Whatever uncertainty we now face is likely to persist unless some sort of tiebreaker is found which gathers the overwhelming support of the people.

15. We need to trust less in personalities and more in policies, look less to politics and more to principle, less to rhetoric and more to tangible outcomes, less to the government of the day and more to enduring institutions, first among which must be the Federal Constitution.

16. We need an unprecedented degree of openness and honesty about what our issues are and what can be done; about who we are, and where we want to go. We need straight talk rather than slogans. We need to be looking the long horizon rather than occupying ourselves with media-generated milestones.

17. Those of us who think about the future of Malaysia have never been so restless. The mould of our past is broken, and there is no putting it back together again, but a new mould into which to pour our efforts is not yet cast. This is a time to think new thoughts, and to be courageous in articulating them.

18. Such is the case not just in politics but also in how the government manages the economy. In a previous speech I argued that for our economy to escape the “middle income trap” we need to make a developmental leap involving transformative improvements in governance and a successful reform of our political system. I said the world recession is a critical opportunity for us to re-gear and re-tool the Malaysian economy because it is a challenge to take bold, imaginative measures. We must make that leap or remain stuck as low achievers who were once promising.

19. We are in a foundational crisis both of our politics and of our economy. In both dimensions, the set plays of the past have taken us as far as they can, and can take us no further. Politically and economically, we have arrived at the end of the road for an old way of managing things. The next step facing us is not a step but a leap, not an addition to what we have but a shift that changes the very ground we play on.

20. This is not the first time in our brief history as an independent nation that we have found ourselves at an impasse and come up with a ground-setting policy, a new framework, a leap into the future. The race riots of 1969 ended the political accommodation and style of the first era of our independence. Parliament was suspended and a National Operations Council put in place under the leadership of the late Tun Razak. He formed a National Consultative Council to study what needed to be done. The NCC was a non-partisan body which included everyone. It was the NCC that drafted and recommended the New Economic Policy. This was approved and implemented by the Government.

21. The NEP was a twenty year programme. It had a national, and not a racial agenda to eradicate poverty and address structural inequality in the form of the identification of race with occupation. It aimed to remove a colonial era distribution of economic roles in our economy. Nowhere in its terms is any race specified, nor does it privilege one race over another. Its aim was unity.

22. The NEP’s redistributive measures drew on principles of social justice, not claims of racial privilege. This is an important point. The NEP was acceptable to all Malaysians because its justification was universal rather than sectarian, ethical rather than opportunistic. It appealed to Malaysians’ sense of social justice and not to any notion of racial privilege.

23. We were devising a time-limited policy for the day, in pursuit of a set of measurable outcomes. We were not devising a doctrine for an eternal socio-economic arrangement. Like all policies, it was formulated to solve a finite set of problems, but through an enduring concern with principles such as equity and justice. I happen to think it was the right thing for the time, and it worked in large measure.

24. Curiously, although the policy was formulated within the broad consensus of the NCC for a finite period, in our political consciousness it has grown into an all-encompassing and permanent framework that defines who we are. We continue to act and talk as if it is still in place. The NEP ended in 1991 when it was terminated and replaced by the New Development Policy, but eighteen years on, we are still in its hangover and speak confusingly about liberalizing it. The NEP was necessary and even visionary in 1971, but it is a crushing indictment of our lack of imagination, of the mediocrity of our leadership, that two decades after its expiry, we talk as if it is the sacrosanct centre of our socio-political arrangement, and that departures from it are big strides. The NEP is over, and we have not had the courage to tell people this. The real issue is not whether the NEP is to be continued or not, but whether we have the imagination to come up with something which better serves our values and objectives, for our own time.

25. Policies are limited mechanisms for solving problems. They become vehicles for abuse when they stay on past their useful life. Like political or corporate leaders who have stayed too long, policies that overrun their scope or time become entrenched in abuse, and confuse the means that they are with the ends that they were meant to serve. The NEP was formulated to serve the objective of unity. That objective is enduring, but its instrument can come up for renewal or replacement. Any organisation, let alone a country, that fails to renew a key policy over forty years in a fast-moving world is out of touch and in trouble.

26. There is a broad consensus in our society that while the NEP has had important successes, it has now degenerated into a vehicle for abuse and inefficiency. Neither the Malays nor the non-Malays approve of the way it now works, although there would be multiracial support for the objectives of the NEP, as originally understood. The enthusiasm with which recent reforms have been greeted in the business and international communities suggests that the NEP is viewed as an obstacle to growth. This was not what it was meant to be.

27. It was designed to promote a more equitable and therefore a more harmonious society. Far from obstructing growth, the stability and harmony envisaged by the NEP would were to be the basis for long term prosperity.

28. Over the years, however, and alongside its successes, the NEP has been systematically appropriated by a small political and business class to enrich itself and perpetuate its power. This process has corrupted our society and our politics. It has corrupted our political parties. Rent-seeking practices have choked the NEP’s original intention of seeking a more just and equitable society, and have discredited the broad nation-building enterprise which this policy was meant to serve.

29. Thus, while the NEP itself has expired, we live under the hangover of a policy which has been skewed from its intent. Instead of coming up with better policy tools in pursuit of the aims behind the NEP, a set of vested interests rallies to defend the mere form of the NEP and to extend its bureaucratic sway through a huge apparatus of commissions, agencies, licenses and permits while its spirit has been evacuated. In doing so they have clouded the noble aims of the NEP and racialized its originally national and universal concerns.

30. We must break the stranglehold of communal politics and racial policy if we want to be a place where an economy driven by ideas and skills can flourish. This is where our daunting economic and political challenges can be addressed in one stroke. We can do much better than cling to the bright ideas of forty years ago as if they were dogma, and forget our duty to come up with the bright ideas for our own time. The NEP, together with the Barisan coalition, was a workable solution for Malaysia forty years ago. But forty years ago, our population was about a third of what it is today, our economy was a fraction the size and complexity that it is now, and structured around the export of tin and rubber rather than around manufacturing, services and oil and gas. Forty years ago we were in the midst of the Cold War, and the Vietnam War raged to the north. Need I say we live in a very different world today. We need to talk to the facebook generation of young Malaysians connected to global styles and currents of thought. We face global epidemics, economic downturns and planetary climate change.

31. We can do much better than to cling to the outer form of an old policy. Thinking in these terms only gives us the negative policy lever of “relaxing” certain rules, when what we need is a new policy framework, with 21st century policy instruments. We have relaxed some quotas. We have left Approved Permits and our taxi licensing system intact. We have left the apparatus of the NEP, and a divisive mindset that has grown up around it, in place. Wary of well-intentioned statements with no follow-through, the business community has greeted these reforms cautiously, noting that a mountain of other reforms are needed. One banker was quoted in a recent news article as saying: “All the reforms need to go hand in hand..Why is there an exodus of talent and wealth? It is because people do not feel confident with the investment climate, security conditions and the government in Malaysia. Right now, many have lost faith in the system.”

32. The issues are intertwined. Our problems are systemic and rooted in the capability of the government to deliver, and the integrity of our institutions. It is clear that piecemeal “liberalization” and measure by measure reform on a politicized timetable is not going to do the job.

33. What we need is a whole new policy framework, based on a comprehensive vision that addresses root problems in security, institutional integrity, education and government capability. What we need to do is address our crisis with the bold statecraft from which the NEP itself originated, not cling to a problematic framework that does little justice to our high aspirations. The challenge of leadership is to tell the truth about our situation, no matter how unpalatable, to bring people together around that solution, and to move them to act together on that solution.

34. If the problem is really that we face a foundational crisis, then it is not liberalization of the NEP, or even liberalization per se that we need. From the depths of the global economic slowdown it is abundantly clear that the autonomous free market is neither equitable nor even sustainable. There is no substitute for putting our heads together and coming up with wise policy. We need a Malaysian New Deal based on the same universal concerns on which the NEP was originally formulated but designed for a new era: we must continue to eradicate poverty without regard for race or religion, and ensure that markets serve the people rather than the other way around.

35. Building on the desire for unity based social justice that motivated the NEP in 1971, let us assist 100% of Malaysians who need help in improving their livelihoods and educating their children. We want the full participation of all stakeholders in our economy. A fair and equitable political and economic order, founded on equal citizenship as guaranteed in our Constitution, is the only possible basis for a united Malaysia and a prerequisite of the competitive, talent-driven economy we must create if we are to make our economic leap.

36. If we could do this, we would restore national confidence, we would bring Malaysians together in common cause to build a country that all feel a deep sense of belonging to. We would unleash the kind of investment we need, not just of foreign capital but of the loyalty, effort and commitment of all Malaysians.

37. I don’t know about you. I am embarrassed that after fifty years of independence we are still talking about bringing Malaysians together. I would have wished that by now, and here tonight, we could be talking about how we can conquer new challenges together.

Do take the trouble to understand before you find fault with the judges of the Court of Appeal

by N H Chan

Before you go about judging the judges of the Court of Appeal on their five minute oral decision which they handed down on Friday, May 22, 2009, please bear in mind the wise words of the most liberal of American judges, judge Learned Hand who once wrote - The Spirit of Liberty, p 110:

… while it is proper that the people should find fault when the judges fail, it is only reasonable that they should recognise the difficulties. … Let them be severely brought to book, when they go wrong, but by those who will take the trouble to understand.

I shall now try to help you take the trouble to understand the oral findings of the Court of Appeal. First of all we will look at what the New Straits Times, Saturday. May 23, 2009 has to say:

PUTRAJAYA. … In allowing the appeal by Datuk Seri Zambry Abdul Kadir that he was constitutionally appointed as menteri besar by the sultan on Feb 6, Court of Appeal judge Datuk Md Raus Sharif said there was no clear provision in the state Constitution that a vote of no confidence against Nizar must be taken in the assembly.

Raus, who sat with Datuk Zainun Ali and Datuk Ahmad Maarop to hear submissions on Thursday, said Nizar had on February 4 made a request to the sultan to dissolve the assembly under Article 16 (6) because he no longer enjoyed the support of the majority assemblymen.

He said Nizar had no choice but to resign once the ruler declined to dissolve the assembly.

“There is no mandatory or express requirement in the Perak Constitution for a vote of no confidence to be taken in the legislative assembly.” Raus said in a five-minute oral ruling before a packed court room.

That was all. That is the gravamen of the five minute decision. What the Court of Appeal has said above as reported in the New Straits Times had also been said by Mr Justice Abdul Aziz in the High Court in his well considered judgment - 78 pages on A4 paper. This is what the High Court judge said, at p 30:

It is not in dispute that His Royal Highness had exercised the royal prerogative in this case pursuant to Article XVI (2) (a) and (6) of the Perak’s State Constitution. However the applicant [Nizar] is not asking the Court to review His Royal Highness’ prerogative to appoint the respondent [Zambry] as MB Perak or His Royal Highness’ prerogative to withhold consent to dissolve the State Legislative Assembly. The applicant concedes that the two royal prerogatives are not subject to review and non justiciable. That is the reason, the applicant [Nizar] said, His Royal Highness was not made a party to the present disputes.

And at pp 36, 37 Abdul Aziz J also said:

Under Article XVI(2) of the Perak’s State Constitution His Royal Highness shall appoint as Menteri Besar a member of the State Legislative Assembly who in His Royal Highness’ judgment is likely to command the confidence of the majority of the members of the State Legislative Assembly. …

I never had any doubt that the exercise of the royal prerogative to appoint a Menteri Besar pursuant to Article XVI(2) Perak’s State Constitution is solely based on personal judgment of His Royal Highness and that His Royal Highness may resort to any means in order to satisfy himself and accordingly to form his judgment as to whom who is likely to command the confidence of the majority of the State Legislative Assembly that he can be appointed as the Menteri Besar to lead the Executive Council.

I also have no doubt that His Royal Highness has absolute discretion with regard to the appointment of a Menteri Besar and the withholding of consent to a request for the dissolution of the State Legislative Assembly. This is plain and obvious from the reading of Article XVIII (1) and (2) (a) and (b) of Perak’s State Constitution.

The High Court judge even agreed, at p 37:

… that if the Menteri Besar ceases to command the confidence of the majority of the members of the State Legislative Assembly, he shall tender the resignation of the Executive Council, …

So then, how could the Court of Appeal overrule the judgment of the High Court when the higher court substantially agrees with the judgment of the High Court? The newspaper report is not very clear on this point as we are still unaware of the reason for overruling the judgment of the High Court judge.

However, according to the report in the New Straits times, Raus JCA did say, “There is no mandatory or express requirement in the Perak Constitution for a vote of no confidence to be taken in the legislative assembly.” So what if there is no provision for a vote of no confidence in the Legislative Assembly. The High Court had found that Nizar is still the Mentri Besar. To overrule the decision of the High Court, the Court of Appeal must explain why the judge of the High Court was wrong in finding that Nizar is the Mentri Besar.

The newspaper had even suggested that it could be implied in the ruling of the Court of Appeal that the Ruler had sacked the incumbent Mentri Besar Nizar:

The unanimous Court of Appeal ruling yesterday seems to suggest that a head of state can sack the incumbent head of government once it was determined that the politician ceased to command the confidence of a majority of the elected representatives.

The newspaper is wrong. That was not the finding of the Court of Appeal. In any case the monarch has no power to dismiss a Mentri Besar - there is no provision for it in the Perak Constitution.

The trial judge Abdul Aziz J in his judgment has explained why he found that Nizar is still the Mentri Besar. This is how he puts it - see p 54 of his judgment:

It is true the request may be made only under two provisions of Perak’s State Constitution i.e. Article XVI(6) and Article XXXVI (1) and (2). But the circumstances under which the request can be made is unlimited. The request under Article XVI(6) is specific to a situation where the Menteri Besar ceases to command the confidence of the majority in the State Legislative Assembly; whereas under Article XXXVI (1) and (2), [the] situation is unlimited. It is up to the Menteri Besar to choose his time to make the request. However once a request is made under whichever of the two provisions, it is entirely up to His Royal Highness’ discretion whether to grant or [not to grant] the consent to dissolve the State Legislative Assembly.

Then at pp 56-58 the High Court judge comes to this conclusion:

In my view it is alright if His Highness takes upon himself to determine who commands the confidence of the majority in the State Legislative Assembly that he can appoint as the Menteri Besar. Such determination however is only good for the purpose of appointing a Menteri Besar pursuant to Article XVI(2)(a) Perak State Constitution. This is so because that provision speaks of ‘who in his judgment is likely to command the confidence of the majority’. The language use therein requires the exercise of a personal judgment on His Royal Highness.

But the same thing cannot be said with regard to Article XVI(6) in deciding whether the Menteri Besar ceases to command the confidence of the majority of the members of the Legislative Assembly. In this case His Royal Highness, through his enquiries has judged that the respondent [Zambry] has the support of the majority. But that finding does not necessarily mean His Royal Highness can form an opinion that the applicant [Nizar] ceases to command the confidence of the majority of the members of the legislative assembly. One reason for this is that the expression ‘in his judgment’ is not used in Article XVI(6). … I am of the view that just because His Royal Highness had formed a judgment that the respondent [Zambry] is likely to command the confidence of the majority for the purpose of Article XVI(2)(a) to appoint the respondent [Zambry] as Menteri Besar it does not mean that His Royal Highness’ opinion or judgment is applicable in deciding that the applicant [Nizar] ceases to command the confidence of the majority of the members of the Legislative Assembly. In another word, one cannot say that because His Royal Highness has judged that the respondent [Zambry] is likely to command the confidence of the majority in the Legislative Assembly therefore the applicant [Nizar] ceases to command the confidence of the majority of the members of the Legislative Assembly. I would say that the personal opinion or judgment of His Royal Highness is irrelevant to the construction of Article XVI(6). The [other] reason is that Article XVI(5) Perak State Constitution states that the Executive Council shall be collectively responsible to the Legislative Assembly. Under Article XVI(2)(a) the Menteri Besar is appointed to preside over the Executive Council. Article XVI(6) speaks of “If the Menteri Besar ceases to command the confidence of the majority of the members of the legislative Assembly …”. Reading these three provisions in Article XVI Perak State Constitution it is logical and in fact Article XVI(6) requires it to be so, that it is the Legislative Assembly that determines whether it has confidence in the Menteri Besar as the Head of the Executive Council. The Legislative Assembly may make the determination through a vote of no confidence against the Menteri Besar. (The Emphasis is mine)

It seems to us ordinary folk that the Court of Appeal has missed the point. They decided that Zambry was properly appointed Mentri Besar under Article XVI(6). That is not correct - he could only be appointed under Article XVI(2)(a). Since there cannot be two Mentri Besar and Nizar the incumbent Mentri Besar has not resigned and, further, since the legislative assembly did not decide if he has ceased to command the confidence of the majority of the members of the assembly, Nizar, unquestionably, is still the Mentri Besar of Perak.

Nizar’s case was that Article XVI(6) speaks of “If the Mentri Besar ceases to command the confidence of the majority of the members of the Legislative Assembly”. The poser is who is to decide “If the Mentri Besar ceases to command the confidence of the majority of the members of the Legislative Assembly” under Article XVI(6)? Certainly not the Ruler because the phrase “in his judgment” - which is used in Article XVI(2)(a) - is not used in Article XVI(6). If it is not to be the Ruler then who is to decide “If the Mentri Besar ceases to command the confidence of the majority of the members of the Legislative Assembly”? The answer is in Article XVI(6) itself - only the Legislative Assembly itself could decide if the Mentri Besar ceases to command the confidence of the majority of the members of the Assembly.

Article XVI(6) clearly states that the Mentri Besar who no longer commands the confidence of the majority of the Legislative Assembly “shall tender the resignation of the Executive Council”. This has to be done “unless at his [the Mentri Besar’s] request His Royal Highness dissolves the Legislative Assembly. But Mentri Besar Nizar could not admit that he ceases to command the confidence of the majority of the members of the Legislative Assembly because he would not know until a vote has been taken at the Assembly to determine so. Only the Assembly itself would know if a vote is taken to determine whether the Mentri Besar has lost the confidence of the majority of the members of the Assembly.

Now that you have understood the five-minute decision of the Court of Appeal as well as the well considered judgment of the trial judge, you should be able to severely bring to book the judges of this Court of Appeal since you are now aware if they have done wrong.

Before I sign off, I wish to say a few nice words to the High Court judge. Mr Justice Abul Aziz Abdul Rahim is a fantastic judge. The judgment, especially the piece on the interpretation of Article XVI(6), is so good that it has persuaded me to change my mind on my view of Article XVI(6). If you remember my first article, I have expressed an opinion on Article XVI(6). Now I know I was wrong - and I have to thank Abdul Aziz J for showing me the way.

Why no Federal Court written judgment on Perak

by N.H. Chan




MAY 19 - Do you know why the Federal Court is not giving a written judgment in the Perak debacle?

The answer can be simply put. It is because Article 72 (1) of the Federal Constitution is written in unambiguous language which even a child can understand.

As I have said before in an earlier article that the words, “The validity of any proceedings in the Legislative Assembly of any State shall not be questioned in any court”, mean what they say.

Nothing can be plainer than that. No one in his right senses would try to interpret the obvious meaning of the words in Article 72, unless he wants to say the words mean something else. But the Federal Court was not prepared to do that. And the reason is because they do not want to be known as Humpty Dumpty judges.

Remember Humpty Dumpty in Lewis Carrol’s, “Through the looking Glass?”:

“But ‘glory’ doesn’t mean ‘a nice knock-down argument’,” Alice objected.

“When I use a word,” Humpty Dumpty said, in rather a scornful tone, “it means just what I choose it to mean – neither more nor less.”

So the judges of the Federal Court did the unthinkable. They blatantly refused to apply the constitutional provision as it stands. They ignored it altogether.

But by so doing they have committed the cardinal sin of not administering justice according to law. It is the duty of every judge, indeed it is his only function, to administer justice according to law. And the law, in this context, is Article 72 (1) of the Federal Constitution which is the supreme law of the land.

Said Lord Denning, What Next in the Law, p 319:

“Parliament is supreme. Every law enacted by Parliament must be obeyed to the letter. No matter how unreasonable or unjust it may be, nevertheless, the judges have no option. They must apply the statute as it stands.”

Since the judges of the Federal Court, especially the infamous five, have refused to apply Article 72 (1) as it stands, they have, as a result, impaled themselves on the horns of their own dilemma.

They have, so to speak, placed themselves between the devil and the deep blue sea. Either way their position is untenable. By refusing to apply Article 72(1) of the Federal Constitution as it stands they would be guilty of a misuse of power.

As put by Lord Denning, ibid, p 380:

“May not the judges themselves sometimes abuse or misuse their power? It is their duty to administer and apply the law of the land. If they should divert it or depart from it and do so knowingly, they themselves would be guilty of a misuse of power.

And, in this country, this could be a ground for the judges to be removed from office. This is what section 2 of the Judges’ Code of Ethics 1994 says:

2. (1) This Code of Ethics shall apply throughout the period of his service.

(2) The breach of any provision of this Code of Ethics may constitute a ground for the removal of a judge from office.

And section 3 (1)(d) says:

3. (1) A judge shall not -

(d) conduct himself dishonestly or in such a manner as to bring the Judiciary into disrepute or to bring discredit thereto;

Judging by the unfair treatment of Nizar in his encounter with the Federal Court, public opinion has no doubt that the judges of the Federal Court has brought discredit to the Judiciary. The words of section 3(1)(d) are so clear and easy to understand that we do not need any court of law to explain it to us ordinary folk. We know what the words mean.

By not administering and applying the law, which in this case is the supreme law, of the land as it stands the errant judges have brought discredit to the judiciary – a ground for their removal from office.

And if the Government of the day failed to listen to the voice of the people then they have placed themselves in jeopardy of losing the next general election or any by-election or any State election in the future.

And finally, what about Ramly JCA the judge who had acted with indecent haste when he granted a stay to Zambry of the well-considered judgment of Abdul Aziz J.

Zambry was appealing against the High Court judge’s declaratory order in favour of Nizar. Like the judges of the Federal Court, he has not given any reason for his decision.

Ramly JCA granted the stay of the declaration which Nizar had obtained against Zambry. The judge was unable to explain why he granted the stay. As any lawyer will tell you it is unusual to stay a declaratory order. If such a stay is to be granted, there are legal arguments to be considered from both sides and the judge will have to say why he prefers the argument of one side as against the other.

The people’s perception of him as an unfair judge is the same as that of the errant judges of the Federal Court. Ramly JCA is in no better position than his seniors in the Federal Court.



* N H Chan is a retired judge who last sat in the Court of Appeals.

What is at stake in the Perak crisis

razaleigh.com | Tengku Razaleigh’s official weblog




The Perak crisis is a tragic comedy of errors and bad political judgment that reflects a failure of political leadership. As it continues to spin out of control, it damages our democratic system of governance. To all intents and purposes, one of our most prosperous and developed states has been reduced to a failed state, with a possibly illegal state government in place. This is a condition that can propagate outwards to the rest of the country.

I stated at the beginning of this crisis that by our Constitution, a change of government can only be brought about by democratic means, which is to say, through the ballot box or through a formal vote of confidence in the elected Legislative Assembly. These are the constitutionally mandated means by which the people decide on their government. Any other means of changing the government is unconstitutional and undemocratic, and subverts the basis upon which we are a civilised society.

We now have reason to fear the loss of the people’s confidence in the Constitution, in democracy and in our constitutional monarchy. Responsible political leadership must support rather than destroy the confidence of the people in these practices and institutions. In particular, powers reserved for the Legislative Assembly, which represents the sovereign will of the people, cannot be taken away under any circumstances by anyone. This foundational constitutional principle has been affirmed by the Court. We are all sworn to uphold it. Those who do not understand or accept this principle have no place in government.

Some issues can be solved by a court of law, but the Perak crisis is not one of them. The back and forth events of the past week demonstrate this fact abundantly. The Perak crisis cannot be solved by a decision of the Court because it is at heart a political rather than a constitutional problem. There is really no doubt about what the Constitution says. What is now unclear as a result of an ugly series of manoeuvres is whether Perak has a legitimate government, and there is only one way to resolve that issue. Perhaps our political leadership has not understood how important it is that the people’s voice must prevail, and be seen to prevail, in the choice of their government.

The only solution to the Perak crisis now is for the State Legislative Assembly to be dissolved and free and fair elections held. At this stage there is no other way to restore both public confidence and constitutional legality to the Perak state government, and by extension to our entire system of government. Our survival as a democratic and constitutional monarchy depends on our acceptance of the judgment of the people as expressed in free and fair elections. Any attempt to circumvent that judgment betrays the basic principles and values upon which our nation and incidentally, UMNO itself, stand. I appeal for wisdom and a broader concern for the wellbeing of our country.



Tengku Razaleigh Hamzah
Member of Parliament, Gua Musang

dissolve the Perak state assembly

Written by razaleigh hamzah
razaleigh.com | Tengku Razaleigh’s official weblog


On Feb 7, I wrote that a shameful scene was unfolding in Perak and maintained that despite the “takeover” of the state government by Barisan,

"according to the Constitution, Datuk Seri Nizar Jamaluddin is Menteri Besar until he resigns of his own accord, or is removed by a vote of no-confidence in a formal sitting of the assembly. The Constitution makes no provision for his removal by any other means, including by petitions or instructions from any other authority.

Today, after three months and yet more shameful scenes, the High Court affirmed the same elementary principle, and held that Datuk Seri Nizar has been and remains the Menteri Besar. As Justice Abdul Aziz Abd Rahim put it: “He is, and was, at all material times the chief minister of Perak.” The High Court also ordered Datuk Seri Zambry Abdul Kadir and his executive officers to vacate their offices, and rejected an application from Zambry for a stay of proceedings pending an appeal.

The High Court has thereby affirmed the primacy of the Constitution.

This judgement brings to a head some of the consequences of our constitutional misadventure in Perak.

The government led by Datuk Seri Zambry was all along illegitimate and all decisions and contracts made by that government are without legal status. The cascade of illegalities we warned of must now be unwound painfully. This includes the deplorable events of May 7 in Ipoh. It means the resolution to replace the Speaker was brought by an illegal state government.

The Sultan, and the monarchy itself, is embarrassed by this episode, as well as by a systematic programme by some to inflame this issue into one of race and treason. Such attempts only hurt the institutions they claim to protect, and they hurt Umno and BN. The real issue was always the Constitution and the Rule of Law, and the monarchy is protected in its role of upholding the primacy of the Constitution and the will of the people.

We now hope that the Sultan agrees to dissolve the Assembly. This is the decent thing to do, but also the only way out of a crisis which has already spiralled out of Perak, damaged the rule of law, compromised the judiciary, the police and the state civil service, and damaged the monarchy in public opinion.

Umno is not well served by leaders that place short term political objectives above the Constitution. Our ideals are cheated when the monarchy we claim to protect is brought down to the level of desperate political manoeuvres that discredit us at home and abroad. We have no future as a party if we are seen as being against the people rather than for them. Those unable to rise above narrow party interests to understand what happens to a country when a government loses respect for the law might still like to consider this: it is better for BN to risk state elections that we may lose rather than to lose the entire country by being seen to be opposed to decency, the rule of law, and the will of the people.

The mystery of the missing confession

Monday, 04 May 2009 01:47

We met early April at La Bordega in Bangsar. Bull suggested I should instead sign a Statutory Declaration, as that would be stronger. They can ignore my article but they can’t ignore a Statutory Declaration. NO HOLDS BARRED Raja Petra Kamarudin From the 12th to the 22nd September 2008, I was detained at the Police Remand Centre (PRC) where most ISA detainees spend their first 60 days of detention. Suddenly, on the morning of the 22nd, I was told that my interrogation, which was held from the 17th to the 21st, is going to end and that they have to finalise their report that same day. That was the first surprise. I was supposed to sign my statement the following day -- on the 23rd. Instead, I was packed off to Kamunting the morning of the 23rd without being allowed to sign the statement cum confession. That was the second surprise. What was it that the higher-ups were so scared about that they wanted to keep my confession cum statement from those who were supposed to review it and decide whether I can be released or should be sent to Kamunting for further detention? I really don’t know because they never told me. Anyway, here is part of my interrogation by the Special Branch -- what they asked and what I replied. The last time you were detained for 54 days, is that correct? Yes, it was from 11 April to 6 June 2001. I think it was about 54 days. You were not sent to Kamunting right? That’s correct. That’s because you cooperated. So if this time you also cooperate then there is a good chance you will also not be sent to Kamunting. You might be allowed to go home like the last time. (I just nod) We find your Statutory Declaration very hard to believe. Why do you say that? Well, we don’t think what you said about Rosmah being at the murder scene is correct. How do you know? It is highly unlikely. Rosmah is very rich. She has plenty of money. Why would she want to take the risk of going there personally? She can pay someone to do the job. No need for her to go there herself. Well, that’s what I was told, that she went there personally. We don’t think so. It doesn’t make sense for her to go there herself. Okay, if you say so, but I know what I was told. Who told you? Lt Kol Azmi Zainal Abidin. He is the number two in the Special Branch of the Military Intelligence. Yes, we know who he is. So, that means you can ask him yourself then since you know him. But how do you know he was telling you the truth? He could be setting you up. I admit I don't know Lt Kol Azmi that well. But he is always in Ku Li’s office. He is very close to Ku Li. And Anwar Ibrahim also knows him very well. So you are not really that close to Lt Kol Azmi. That means you don’t know whether you can trust him. We feel he is setting you up as the fall guy. Maybe if I had to just trust him then I wouldn't dare take that risk. I mean; I don’t know him well enough to trust him all the way. But the person who introduced us is a very old friend. I’ve known him for about 45 years, longer than I’ve known my wife. And I trust my friend. My friend gave me his personal assurance that the story is legit. Who is that friend? Nik Azmi Nik Daud. We call him Bull. He works for Ku Li. I also asked Din Merican to check with Anwar whether I can trust Lt Kol Azmi with my life. Those were the exact words I used. What did Anwar say? Anwar replied you should never trust anyone with your life. However, Lt Kol Azmi’s information is very reliable. I also asked John Pang, who also works for Ku Li, to check with Ku Li whether Lt Kol Azmi’s information is reliable. I told John what Lt Kol Azmi told us and asked him to inform Ku Li about it. John confirmed that Lt Kol Azmi told Ku Li the same thing and that the information is reliable. So that is why you signed the Statutory Declaration? No. Actually, initially, I wanted to just write an article, like usual. But Bull asked to meet first before I write anything. So we met early April at La Bordega in Bangsar. Bull suggested I should instead sign a Statutory Declaration, as that would be stronger. They can ignore my article but they can’t ignore a Statutory Declaration. Then you signed it? No. I still did not sign it yet. I was worried about the repercussions. We would be forcing the government to act and they might come down hard on me. As Bull said, they can ignore my article but they can’t ignore a Statutory Declaration. Bull called for a second meeting on the Sunday before I signed the Statutory Declaration. We met at the Selangor Club Dataran Merdeka for lunch. And then? I told Bull I was a bit worried about signing a Statutory Declaration because the government will surely arrest and charge me if I do. I felt an article would be safer. But Bull disagreed. He felt an article was not strong enough. Bull said if anything happens to me they would go to court to testify that what I had signed is the truth. Bull assured me they would not allow me to rot in jail. So, on the 18th June, I signed the Statutory Declaration. Are you sure they will come forward to testify in your trial? That’s what Bull told me and I trust him. As I said, I’ve known him for 45 years. Okay, let’s see whether they do or not. But we think they will not. They will not come forward to testify at our trial. Maybe. Maybe what you say is true. I don’t know. Let’s see. After all I have already been charged and my trial will soon start. Let’s see whether they keep their word and testify at my trial. But I am confident they will because they have given me their assurance. We believe you have been set up as the fall guy. Maybe they want to get rid of you. I don’t think so. Anyway, we will know soon enough once my trial starts. It is going to be a most interesting trial indeed once the truth surfaces. Don’t you think so? Didn’t Najib’s people approach you to make a deal? You mean to buy my silence? Yes, they did. Who? Datuk Jamaluddin Jarjis. JJ? Yes. When? It was not long after I was charged for sedition, before I signed the Statutory Declaration. JJ phoned and said he wanted to meet. I knew he was working for Najib so I agreed. We met at the car park outside Kelab Taman Perdana. My wife drove me there and waited at a distance. She was worried that it may be a trap and she wanted to be cautious in case they were setting me up, or something like that. JJ arrived about 6pm and asked me to get into his car. He was alone. I waved to my wife and signalled her to go home and she wrote down JJ’s car number plate in case I disappeared or whatever. We drove to a roadside stall in Jalan Ipoh and sat there and talked. JJ told me that Najib had asked him to meet me to make a deal. I asked him whether Najib really knows we are meeting and whether he had endorsed or sanctioned the meeting and JJ replied that our meeting was on Najib’s instructions. We spent about an hour talking. The bottom line is he wanted me to stop writing about Najib and Altantuya. He also asked me whether I could delay my sedition trial until Najib becomes the Prime Minister. Once Najib is installed as Prime Minister they will drop the charges against me. I will also receive a monthly allowance of RM30,000 for my cooperation. He didn’t say for how long though. I asked him how to delay the trial and he replied I can always get a medical certificate to confirm I am not fit enough to attend trial. I told him if I delayed the trial then the legal costs would increase and he offered to pay all the legal fees. He asked me to get my lawyers to issue an invoice and he would pay the cost, whatever it may be. I told my lawyers about this incident so that at least some other people know about it. So, what happened to the deal? Soon after that I signed my Statutory Declaration. That was my way of saying no deal. After that they arrested me and charged me for criminal defamation. I suppose that was their way of replying to my reply. Wouldn’t it have been better for you to accept the deal? After all, Najib is soon going to be the Prime Minister. Maybe. But it’s too late now isn’t it? I have already burned my bridges behind me. The above is a small portion of my questions and answers session with the Special Branch over the five days of interrogation. This, plus a lot more, was compiled into a report, which I was supposed to sign on the morning of 23 September 2008 -- but which never materialised for some strange reason. I am probably the first ISA detainee in almost 50 years who made a statement (confession) but was never asked to sign it.