ICC: A Strategic Withdrawal by the Government?

The International Criminal Court (photo courtesy of Shutterstock)

We have ratified, but have we withdrawn?

AS we all know, Prime Minister Tun Dr Mahathir Mohamad had announced on April 5, 2019 Malaysia’s intention to withdraw from ratifying the Rome Statute of the International Criminal Court.

However, just a week ago Foreign Minister Saifuddin Abdullah said that it is only a dead end for ICERD, but not for the Rome Statute (Jalan mati buat ICERD tapi bukan Statut Rome, kata Saifuddin – Free Malaysia Today, 23 April 2019).

Parliamentary Opposition Leader Ismail Sabri Yaakob hit out at the Foreign Minister the very next day. In a blog post, Ismail asked if the Foreign Minister still wants the Rome Statute ratified and what is the Pakatan Harapan government’s agenda? (Menteri Luar Masih Mahukan Statut Rom Diratifikasikan. Apa Agenda PH? – dsismailsabri.com, 24 April 2019).

What I find most interesting among all the points that were brought up by the Opposition Leader are the date when the statute comes into force for Malaysia, and the period of withdrawal from ratification.

Paragraph 1 of Article 126 of the Rome Statute states that the Statute shall come into force on the first day of the month after the 60th day following the ratification. For Malaysia, that date falls on June 1, 2019.

Paragraph 1 of Article 127 states that a State Party may, by written notification, withdraw from the Statute. The withdrawal shall take effect ONE YEAR after the date of receipt of the notification.

What the above means is that come June 1, 2019, Malaysia becomes a State Party. Any withdrawal following that date will only take effect ONE YEAR AFTER the receipt of the written notification. Until the withdrawal comes into effect, Malaysia is obliged to honour the Rome Statute.

Enter Article 7 Paragraph 1

At a glance, the ICC does not cause a nation’s sovereignty to diminish. Unlike the International Human Rights Law, the International Criminal Law does not directly impact national constitutional arrangements.

However, according to an expert in International Criminal Law, Rupert Elderkin, when International Criminal Law comes into play, it may perform quasi-constitutional functions, in particular offering the only means under public international law to remove state officials from office when they are believed responsible for the most harmful abuses of power (Elderkin, R. (2015). The impact of international criminal law and the ICC on national constitutional arrangements. Global Constitutionalism, 4(2), pp. 227-253).

The Attorney-General can argue that the Yang DiPertuan Agong will not be affected if Malaysia decides to declare war against another nation. Maybe not so. That is the least of my worries. It is Article 7 (Crimes Against Humanity) that I am more concerned about.

This Article deals with any act when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack that includes persecution against any identifiable group or collectively on political, racial, national, ethnic, cultural, religious, gender, or crimes of apartheid.

Persecution means the intentional and severe deprivation of fundamental rights contrary to international law, while the crime of apartheid is explained as an institutionalized regime of systematic oppression and domination by one racial group over any other racial group or groups.

I can name several Articles in the Federal Constitution, and the numerous policies aimed at protecting the special rights of the Malays and Bumiputera, as well as the special position of Islam, that are already against Article 7 of the Rome Statute.

The Malay Rulers act as a shield in their respective states for protecting the religion of Islam. If a Sultan refuses to appoint a state assemblyman whom he thinks has the majority support of the Dewan, as the Menteri Besar, on grounds that the latter is not a Muslim, then the Sultan is already acting in direct contravention of Article 7.

In the case of HRH The Sultan of Selangor and the issue of the use of “Allah” in Bibles five years ago, although the State’s religious affairs department acted in accordance with a state enactment that was made under the state’s constitution, that, too, would have contravened Article 7 of the Rome Statute.

It is immaterial whether or not the State’s constitution or enactments contravene the Federal Constitution. It can only be so when a Constitutional Court deems it to be.

Can the Agong and Malay Rulers be prosecuted?

But will the Yang DiPertuan Agong and the Malay Rulers still be protected from prosecution by the ICC? Or, can they be prosecuted by the ICC?

The Malay Rulers know of the policies and Articles that give Islam its status as the religion of the Federation; that give special status to the Malays and Bumiputeras over others; that makes Malay the national language – all of which come under their protection.

One can argue that since the Malay Rulers are constitutional in form, they cannot be held responsible, as argued by the Attorney-General saying that the Agong cannot declare war and is therefore not accountable. However, the Eighth Schedule of the Federal Constitution clearly states their executive powers.

Although the Latin phrase actus reus non facit reum nisi mens sit rea is the common law test for criminal liability meaning the act is not culpable unless the mind is guilty, it also means that a crime can be committed not only through one’s intention, but also through the knowledge that one’s action or inaction would contribute the same.

In Prosecutor vs Tihomir Blaškić (ICC Appeals Chamber, 29 July 2004), the ICC Appeals Chamber held that “the person who orders an act or omission with the awareness of the substantial likelihood that a crime will be committed in the execution of that order, has the requisite mens rea for establishing liability under Article 7(1) pursuant to ordering. Ordering with such awareness has to be regarded as accepting that crime.”

In other words, there is no legal requirement of an ideology, plan or policy to articulate the mens rea applicable to crimes against humanity. In this context, the Malay Rulers can be found culpable to promoting and enforcing policies and plans that oppress targeted race or religion, while holding the supremacy of one race or religion.

In the words of Catherine Gegout, and Associate Professor in International Relations, Faculty of Social Sciences at the University of Nottingham,

“The ICC can prosecute any individual anywhere in the world, but for suspected criminals who are citizens of a state which has not ratified the ICC Statute, a United Nations Security Council (UNSC) resolution is necessary.” (Gegout, C. (2013). The International Criminal Court: limits, potential and conditions for the promotion of justice and peace. Third World Quarterly, Volume 34, 2013, Issue 5, pp. 800-818).

How effective can ICC prosecute will depend on how cooperative a State Party is. If the government, as the executive branch of a State Party, decides to cooperate with the ICC and have a Malay Ruler tried by the ICC, then It could.

So, what is the government’s intention?

If there is something that may affect the status of Islam as the religion of the Federation, the special privileges of the Malays and Bumiputera, the National Language, and the status and functions of the Malay Rulers, it is imperative that the government bring it to the Malay Rulers to be deliberated.

By going quietly and ratifying the Rome Statute without first bringing the matter to the attention of the Malay Rulers is an act that contravenes the Federal Constitution. The Malay Rulers have every right to be consulted, to warn and to encourage. The cabinet members all took an oath to serve in His Majesty’s government, a Malaysian government; not a political party’s government.

So, what was the intention of ratifying the Statute? To take Myanmar to the ICC? China for the mistreatment of the Uighurs

Most importantly – June 1, 2019 is getting nearer each day. Why has the government not sent the formal letter to the Secretary-General of the UN to notify of Malaysia’s intention to withdraw from ratifying the Statute? How difficult can drafting a letter be? Does it need more than 25 days to draft one?

Or is the announcement by the Prime Minister 26 days ago a form of strategic withdrawal that will only see a letter sent days, weeks, months or years after June 1, 2019 that will see Malaysia bounded for another year after?

(This article first appeared on The Mole)

We Are Not Absolute Monarchy, But Neither Are We A Dictatorship

The Prime Minister has defended his view that the palace has no role in the appointment of the menteri besar, in remarks which are likely to increase tension between him and the Johor royal family.

“When we formed the Federation of Malaya, we introduced the constitution, where we stated that Malaya will follow the constitutional monarchy system.

“The ruler has no absolute power. If it still says so in the Johor constitution, then it is void. (We Are Not Absolute Monarchy, Neither Is Johor says Dr M – Free Malaysia Today, 10 April 2019).

Perhaps Mahathir is already incoherent. Article 71 of the Federal Constitution guarantees the Constitution of the States.

If there is any conflict between the state’s constitution with that of the Federal Constitution, then the matter has to be decided by a Constitutional Court.

Example: Selangor’s Shariah Offences Enactment gives power to the state religious affairs authority to confiscate Bibles printed in the Malay language or using one of the 25 prohibited terms such as Allah. This is in conflict with with Article 11 of the Federal Constitution, but is applicable in Selangor until such time a Constitutional Court declares it null and void.

While Malaysia is a Constitutional Monarchy, Article 181(1) of the Federal Constitution states:

Subject to the provisions of this Constitution,” the “sovereignty, prerogatives, powers and jurisdiction of the Rulers…as hitherto had and enjoyed shall remain unaffected.”

The same was noted by Mark R Gillen of the Faculty of Law, University of Victoria (Gillen 1994:7). In the words of the late Sultan of Perak, Sultan Azlan Shah, former Lord President, it is:

…a mistake to think that the role of a King, like that of a President, is confined to what is laid down by the Constitution, His role far exceeds those constitutional provisions” (Azlan Shah 1986:89)

In other words, the Rulers may be Constitutional Monarchs, but they are not limited to what have been spelt out in the Federal Constitution.

Now, back to who has the right to appoint the Menteri Besar of Johor since the Constitution of Johor is not void? Please refer to the photo below which is a screenshot of the Constitution of Johor regarding the appointment of the Menteri Besar:

You can fool the uneducated voters, but you can’t fool the likes of me.

The Price for Citizenship

The spat between the TMJ and Mahathir has not seen its end (photo courtesy of abuleman.org)

I do not think that we have seen the end of the volleys fired at each other between the Tunku Mahkota of Johor (TMJ) and the Government. Although I disagree with the TMJ whenever he writes about anti-federalism, I agree with his stand to protect the Federal Constitution. He may not have the protection from the law as he is not the Head of State, but his courage and determination to go at loggerheads with the Government on this matter deserves support.

According to Barisan Nasional Member of Parliament Annuar Musa, the recent Rulers Council meeting saw the Attorney-General Tommy Thomas and Foreign Minister Saifuddin Abdullah summoned by His Majesties to explain on the clandestine ratification of the Rome Statute.

His Majesties also summoned Emeritus Professor Shad Saleem Faruqi, a Professor of Law in the University of Law, who is a proponent of the Rome Statute. Also summoned were four academicians opposed to the statute: Law and Constitution lecturers Professor Datuk Dr Rahmat Mohamad, Associate Professor Dr Shamrahayu Ab Aziz, Dr Fareed Mohd Hassan and Hisham Hanapi.

Only after listening to all above did the Rulers Council leave it to the Yang DiPertuan Agong, who represents the Rulers Council, to take the matter with the Prime Minister. The Rulers Council could have there and then issued a statement to show their displeasure at the manner their Government had acted in matters that could have an impact on the rights and position of Islam as the religion of the Federation, the Malay Rulers, the privileges of the the Malays and Bumiputeras, and the National Language.

This is not the first time that Saifuddin has gotten himself in hot soup. When he was a Minister in Najib Razak’s administration, he came up with a National Unity Bill when that was not the term given to him as Chairman of the National Unity Consultative Council. As a result, Najib Razak and the Attorney-General then were summoned to the same meeting four years ago and received a telling or two.

Mahathir was very obviously furious as seen in the video of a press conference made after announcing Malaysia’s pulling out of the Rome Statute, and unnecessarily alarmed the people with words like coup-d’etat to justify the Government’s about turn.

What he, and his supporters seem to have forgotten is that he is the Prime Minister of His Majesty’s government. It was the agreement signed between their Majesties with the ruling coalition in 1957 to transfer the administrative powers vested in the British advisors by their Majesties from the former, to the government that was elected by the people.

This was true then, true when the British were still here, and still true now that although the Rulers had divested much of their independence, they remain sovereign; and independence is not equal to sovereignty.

As a principle of international law, sovereignty denotes, in its purest form, the concept of a ‘supreme authority’ be it an individual or a collective unit and implied power to exercise independence both internationally and domestically.

And Professor Datuk Dr Ramlah Adam rightfully pointed out that the powers of the Malay royalty are now included in the Federal Constitution. They (the Rulers Council) should have been consulted first, as accorded by the Constitution, before the government took unilateral decisions to introduce and ratify ICERD and the Rome Statute.

Other than having the rights to be consulted, to encourage and to warn in daily administrative matters, the Malay Rulers also have the duty to protect the sanctity of Islam as the religion of the Federation and the states they reign over, the special privileges of the Malays and Bumiputeras, the special position of the Malay language as the National language.

These are the rights enshrined in the Federal Constitution, and any attempt to introduce anything that has any effect on the above, will need the agreement of the Rulers Council. Any deviation from that is against the Federal Constitution and the spirit in which it was made and agreed to by our forefathers with all the parties involved.

And I saw an online comment by a non-Malay netizen asking what have the Malay Rulers done that have benefitted the people? After the post-World War 2 racial clashes that saw the birth of the First Emergency, the British based on a priori saw the need to resettle the Chinese in camps while between 20,000 and 50,000 be sent back to China.

The plan moved at a snail’s pace due to the objections by many, and with the total withdrawal of the Kuomintang to Formosa, the repatriation of the Chinese came to a halt in September 1949 when the Communist Party of China closed off all ports and beaches. Only 6,000 Chinese from Malaya were sent back (Anthony Short, 1975 pp 178-201). The rest were settled in new villages to curb them from supplying the Communist Party of Malaya with food and other essentials.

Most of them had never had any form of allegiance to Malaya, its Rulers and government. Therefore, in granting citizenship to them they were required to give allegiance to the Rulers and the Federation.

That is the price you have to pay to become the citizens of this nation.

The same goes to all the Members of Parliament and members of the government cabinet: you have all taken an oath of allegiance to the Yang DiPertuan Agong, who represents the other eight Malay Rulers. State executive councillors and elected representatives have also taken the oath of allegiance to their respective Ruler. You are all administering the governments of the Federation and its states on behalf of the Malay Rulers, therefore it is totally unbecoming for you to act as though they are equals.

As in the words of Tengku Amer Nasser Ibrahim, the adopted son of the 16th Yang DiPertuan Agong, posted to his Instagram story:

“Tadbir” must be accompanied by “Adab”, only then will the outcome be just.

So, stop toying around with the Malay Rulers, the sanctity of Islam, the privileges of the Malays and Bumiputeras, and the special position of the Malay language as the National language.

We, the rakyat, are watching.

UMNO: OVERHAUL OR SINK INTO A GREAT ABYSS

AHMAD Zahid Hamidi, who was until three days ago adamant on staying on to helm Umno, has finally stepped aside to allow his deputy, Datuk Seri Mohamad Hasan, to lead the grand old party.

Ahmad Zahid was not seen to take charge after taking over the president’s seat from his predecessor, Datuk Seri Najib Razak.  

His win in the party elections that secured his position is said to be due to three factors: that he is the continuation of Najib Razak‘s leadership (to which we have not seen any resemblance); that he had a strong social media team to bombard members with campaign materials  at the eleventh hour before the votes were cast; and, allegations of vote-buying which had recently surfaced.

The sad bit is that Umno grassroots have been left without direction.  Unlike Pakatan in previous elections, Umno per se did not organise ceramahs to win back the hearts and minds of voters after the loss.  Instead, Zahid’s leadership hung on to a saying by Sun Tzu that the greatest strength is found in silence.

This silence further drove grassroot members and supporters in the Malay hinterland alike towards the arms of Pakatan Harapan (PPBM in particular) and Pas because they are the only Malay parties that are actually doing and saying something.

It is understandable with the comical nature of most of the government’s Cabinet members, staying silent watching the Pakatan-led government crumble due to its own doings is probably the best thing to do.

Umno and Barisan Nasional component party members do not have to do anything much except wait for the moment to give voters the “I told you so” comment. 

But global economic conditions will change, and cabinet members will wise up. You can already see this in the likes of Health Minister Dr Dzulkefly Ahmad and Defence Minister Mohamad Sabu.

Both are seen to be going on the ground to learn the ropes of their trade. Dr Dzul is streamlining the health policies to continue to make medical treatment affordable for both the people and the government, while Mohamad has formed the Armed Forces Veterans Council, a very much awaited move that has eluded the veterans who would like their voice on how they should be treated, heard.

Other than that, the Prime Minister has his Council of Eminent Persons (CEP) to act as a buffer as well as a damage-control council any time a Minister blurts out not-thoroughly-thought-of remarks.

Umno was left with 54 seats after the previous general election – the single party with the largest number of parliamentary seats.  Fear of being taken legal action against, as well as the seemingly lack of direction from Zahid, saw Umno MPs jump to the other side.

For seven long months Umno under Zahid neglected the Malay strongholds – the kampungs and especially Felda.  

Some 59 percent of Felda voters voted for the BN (UMNO), 24 percent for PAS, and 17 for PH (mainly PPBM). In the kampungs, BN (UMNO) retained 47 percent, 19 percent for PAS while PH garnered 34 percent.

Khor Yu Leng broke this down further in her article (The Edge Malaysia, 17 December 2018) to the states of Johor, Pahang and Negeri Sembilan where the Felda districts are mostly located. 

She found that in the Johor Felda districts, 70 percent of voters chose Umno while in the kampungs, both Umno and PH had 45 percent each.  Pas trailed with only five percent. 

Pas had support in the Pahang FELDA districts and kampungs where it received 35 and 25 percent of the votes respectively, while PH only received 10 and 25 percent. BN received 55 and 50 percent respectively. 

However, both BN and Pas saw a huge decline in support from the Felda youth segments in both Negeri Sembiland and Johor.

With commodity prices declining rapidly and cost of living increasing rapidly, I fail to see the logic of staying silent waiting for the moon to fall into Umno’s lap. 

I seriously do not understand why Umno hasn’t gone into the Malay hinterlands to take advantage of this.

I have always opined, again it is my opinion, that someone difficult to target such as Tengku Razaleigh should have been the Opposition Leader, while Mohamad Hasan look after the administration and management of Umno.  

Ku Li is the president Umno almost had, while Mohamad Hasan’s approach is seen to be welcomed by the voters. Even Ahmad Maslan is consistent in his role as an opposition MP.

It is extremely important for Umno to see what the voters want, not just what it wants.  Without the voters’ approval, there is no way for Umno to make any form of come back. 

This talk of bringing Najib Razak back as the Opposition Leader should be stopped.  His brand is a damaged brand and it is unlikely that the voters other than those in Pekan would like to see him back so soon at the helm of the country. 

An Umno member might disagree, but if you ask any urban voter disenfranchised by Pakatan’s flip-flop policies, Najib is out of the question – at least for now.

Umno also needs to stop fielding heritage candidates like Ku Nan, Nazri Aziz to name a few.  Start looking at the younger generation. We have a great deal of young voters who need fresh political air to breathe in.  If Umno refuses to evolve, it will die.

Talking about young voters, something caught my eye that could be a breath of fresh air — that tea-chat session between Rafizi Ramli, Nurul Izzah and Khairy Jamaluddin. They could be the precursor to a third force.  

In spite of their political leanings, the three are idealists, as are other younger politicians like MCA’s Chong Sin Woon, DAP’s Ong Kian Ming and PKR’s Wong Chen.  

Imagine if they are to form their own party, both BN and PH would have a tough time holding on to their current seats in the next general election. 

This is why Umno needs a total overhaul, do away with the little Napoleons and get idealistic younger candidates fielded.

But before then, send these potential candidates out to the Malay hinterlands and let them engage the voters there.  

But that has to be done now. If Umno chooses to remain silent and wait for the heavens to fall into its lap, be forewarned that the heavens may float up, but they contain masses that may sink Umno into a great abyss from where it will never float to the surface again.

(This article was first published by The Mole)

The Malaysian Concord (Part 4) – The Position and Function of the Malay Rulers

This article follows a previous one on the Malay and Bumiputera special rights.

A couple of days ago it was made known to the public that the street names in a certain suburb of Shah Alam were changed to Chinese characters, in contravention of Sections 2 and 9 of the National Language Act, 1963/67.

Yesterday, HRH The Sultan of Selangor decreed that the street names be taken down and replaced by ones in the Malay language, which is the National Language.

I mentioned in a previous post that a national language is a tool to unite the peoples of Malaysia. 

It was the intention of our forefathers in the quest for independence to have ONE language to unite all, and that is the Malay language with a Romanised written form, so that the non-Malays could learn the Malay language rapidly (Tunku Abdul Rahman, The Road to Independence, 1984: pp.112-114).

I gather that those were the reasons His Royal Highness issued the decree mentioned above – in line with one of the functions of the Malay Rulers: to care for the people’s welfare.  Therefore, if there is any issue that may cause tension, the Malay Rulers will step in to remind the people to respect each other and to respect the laws.

What I find disgusting in this episode is that the local government, or local council, allowed for the street name change to happen, forgetting that every instrument of the government is acting on His Majesty’s Service.

Not too long ago, all government envelopes had URUSAN SERI PADUKA BAGINDA stamped at the top; that was until someone who was not fond of the Rulers changed that to URUSAN KERAJAAN.

 

Essentially, all government branches, including the Federal cabinet as well as the state executive councillors, are acting on behalf of the Yang DiPertuan Agong and Sultan (in the case of states).  

They are not independent of the Rulers – which is why they are sworn in before the Agong or the Sultan.

The Malay Rulers have divested much of their independence now as they did before during the period of British administration.

However, both they and their state remain sovereign. Independence is not equal to sovereignty.

The British were here through the various treaties signed with the respective Malay Rulers.  Save for the Japanese occupation, Malayan Union period, Pulau Pinang, Melaka and for a while, Pangkor, the Dindings and Larut, Peninsular Malaysia was never under British colonial rule.

There were three test cases to determine the sovereignty of the Rulers and the state they ruled:

 

  1. The infamous Mighell v The Sultan of Johore (1894) where it was ruled that, although the Sultan by treaty had bound himself not to exercise some rights of a sovereign ruler, this did not deprive him of his character as an independent sovereign;
  2. In Duff Development Company Limited v The Government of Kelantan (1924), the House of Lords similarly upheld the sovereignty of Kelantan and its Ruler was not intended to be qualified by the terms of the treaty.
  3. In Pahang Consolidated Company Limited v State of Pahang (1933), the Privy Council summarised the constitutional position in Pahang as follows: subject to the limitations which the Sultan had from time to time imposed upon himself, he remained ‘an absolute ruler in whom resides all legislative and executive power.’ (See, 1894; Q.B 1924; A.C and M.L.J).

The British were in the Malay states to assist the Malay Rulers in the administration and management of their respective states, and were under the Rulers’ payroll.  

The only matters that they could not touch were the states’ Islamic affairs and Malay customs.

Sir Frederick Lugard wrote of the British Residents:

“From the first to last the theoretical independence of the states was the governing factor in the system evolved in Malaya. The so-called ‘Resident’ was in fact a Regent, practically uncontrolled by the Governor or Whitehall, governing his ‘independent’ state by direct, personal rule, with or without the co-operation of the native ruler.” (Sir F.D Lugard, The Dual Mandate in British Tropical Africa, London, 1926: pp.130-1, vid. pp.8-10).

One such Resident was of course James Wheeler Woodford Birch who, in the words of Sir Richard Olaf Winstedt, “dashed into Perak’s Augean Stables like an angry Victorian schoolmaster, confident that it could all be cleaned up with a little firmness and decision.” (Winstedt, History of Perak, JMBRAS, xii, 1).

Birch’s monumental tactlessness, especially over the regulation of taxes, drove all the Sultan’s Chiefs into frantic opposition which resulted in his assassination in 1875.

Other than the occasional odd behaviour by some Residents, the Malay Rulers and their state remained sovereign and ‘independent’.  In an answer to Colonel Josiah Wedgwood (Labour – Newcastle-under-Lyme) about the control over the states of Malaya, Sir Phillip Cunliffe-Lister (Conservative – Hendon), Secretary of State for the Colonies replied:

“There is no question at all of altering in any degree, even by a comma, the Treaties which bind us, and which are charters of the agreements with the Rulers both of the Federated and the Unfederated Malay States.” (British Parliament Hansard, Commons Sitting, Class II, HC Deb 14 July 1933 vol 280 cc 1429).

With the Independence of Malaya, all the administrative powers handed down by the Malay Rulers to the Federal and State Councils was passed to the government that was chosen by the people of Malaya in the 1955 elections.  

The Federal cabinet administer the government of the Yang DiPertuan Agong, who was elected by the Malay Rulers to represent Their Highnesses at Federal level, while the Menteri Besar and state executive councillors administer the state for the Sultans.

The Malay Rulers, as owners of this land, continue to enjoy their position with their income regulated by the respective laws, and receive advice from the Menteris Besar (or in the case of the Yang DiPertuan Agong, the Prime Minister). 

This is evident in Article 181(1) of the Federal Constitution which states:

“Subject to the provisions of this Constitution,” the “sovereignty, prerogatives, powers and jurisdiction of the Rulers…as hitherto had and enjoyed shall remain unaffected.”

The same was noted by Mark R Gillen of the Faculty of Law, University of Victoria (Gillen 1994:7). 

In the words of the late Sultan of Perak, Sultan Azlan Shah, former Lord President, it is:

“a mistake to think that the role of a King, like that of a President, is confined to what is laid down by the Constitution, His role far exceeds those constitutional provisions” (Azlan Shah 1986:89).

In 1867, Bagehot asserted in “The English Constitution” that the Constitution needed two parts: the dignified – to excite and preserve the reverence of the population’ and the other, the efficient – to ‘employ that homage in the work of government’. 

The monarch was the prime example of dignity in this sense and the Prime Minister (Menteri Besar) and his cabinet (executive councillors) of efficiency.  

Therefore, the monarch, while lacking executive power, had an important constitutional role.

HRH The Sultan of Selangor was correct in the exercise of his function when reminding the people to not touch on the matters that have been agreed upon and are already enshrined in the Constitution – the sanctity of Islam, the National Language, the Malay and Bumiputera special rights, and the position and function of the Malay Rulers.  

Such action, had the Sultan not interjected, would be naïve and dangerous to the fabric of the society.

In the words of Sultan Nazrin Muizuddin Shah of Perak in July 2011:

“Rulers must use wisdom to calm situations, but they do not have a ‘magic lamp’ to keep unity, especially when the situation has become chaotic. “

(This article was first published on The Mole)

Lest We Forget The Alliance

I don’t know what prompted the Malaysian Chinese Association (MCA) to go it all alone in the recent Balakong by-election.

Perhaps, it did not want to be seen as an Umno lackey as it had always been labelled as. But this was the first time that it had contested under its own party logo since the first general election in 1955.

As we can now see, there is a general lethargy among the masses in respect of politics.

We have had three by-elections since the downfall of the Barisan Nasional government and the turnout during the by-elections have been rather poor.

On the 87th day, the Sungai Kandis by-election saw a drop of 18,476 voters compared to the numbers during the 14th general election.

Umno had initially wanted to contest using its own logo but changed its mind. Under the BN banner, the Barisan Nasional saw an 11.49 percent swing compared to 5.84 percent for Pakatan Harapan.

Umno was helped by Parti Islam Se Malaysia (Pas) although the latter still showed a certain amount of distrust towards the former.

There was very little or no involvement at all by MCA and MIC. The majority was reduced by 5,842 compared to 12,480 on May 9.

In the Seri Setia by-election which was held 22 days after Pakatan Harapan’s failure to fulfil its election manifesto promises, Pas saw a 31.01 percent swing for the party, helped by the fact that BN did not contest but assisted Pas during the campaign period.

Pakatan saw a swing 8.02 percent votes against it. The majority was reduced to 4,027 compared to 19,372 during the 14th general election.

MCA, which contested under its own banner against Pakatan, saw a swing of 4.11 percent for it compared to Pakatan’s 7.46 percent.

This means that even with a very much reduced turnout (49.16 percent of the total turnout during the 14th general election), MCA had failed to make a significant impact on the voters.

The philosopher, Jorge Agustín Nicolás Ruiz de Santayana y Borrás or George Santayana, once said that those who do not remember the past are condemned to repeat it.  In this case, the MCA had forgotten its own history.

Before the independence of Malaya, both the MCA and Umno were political enemies.  There was already a feeling of discontent among the Malays in the pre-war period over their poor economic position vis-à-vis the Chinese and Indians.

Professors T.H Silcock and Ungku Aziz noted in 1950 that the Malay peasants and fishermen were dependent on Chinese middlemen while Malays worked as messengers in offices where Chinese and Indians were clerks.

However, Umno knew that in order to achieve independence, a long-lasting relationship with other races needed to be forged. It was during the Umno general assembly of 1949 that Onn Jaafar said,

“It is absolutely important for the Malays to obtain closer ties with the other people in this country.  It is time for us to take the wider view than the kampung view. I ask of you, which will you choose, peace or chaos, friendship or enmity?”

Although the grassroots of Umno was against Onn Jaafar’s idea that led him to leave the party two years later, it opened up a door for both the MCA Selangor Branch and Kuala Lumpur Umno branch to work together in the Federation’s first local elections.

Both Umno and MCA competed against each other and against other parties in Pulau Pinang in December 1951.

MCA had only managed to obtain the support from the Chinese while Umno the Malays. It was Datuk Yahya Abdul Razak from the Kuala Lumpur Umno branch who approached Selangor MCA branch chairman, H.S Lee to discuss the possibility of a cooperation of the two parties.

In January 1952, both branches of the two parties announced that they were jointly-contesting the Kuala Lumpur elections.

The Umno-MCA alliance won 10,340 votes while Onn Jaafar’s IMP won 6,641 votes. MIC joined the alliance in 1954.

This alliance went on to win all but one seats in the 1955 general election.  The rest is history.

In the past, MCA relied on the English-speaking, urban-dwelling portion of the Chinese community who make up about 10 percent of the seven million Chinese people in this country.

That 10 percent is now drowned in smugness and disconnect as they now have the DAP to represent them in the Pakatan Harapan government despite how telling it is that the Pakatan Harapan government is not really interested in reforms.

MCA now needs to go down to the rural ground to try and win the voters back.

There is no way that the MCA can do this all alone by itself. It still needs Umno, MIC and even Pas to help it make a breakthrough.

This can only come about with a rebranding of the approach, and the fight for a common good, with the protection for all races remaining intact.

(This article first appeared on The Mole)

UMNO Needs To Revisit Its Past

It has been more than a month since UMNO’s disastrous show in its history of general elections. Although as an individual party UMNO has the most number of parliamentary seats won, it effectively controls two states – a far cry from the grand old party it once was.

As a party, it has failed to show its support for its leadership (I shall go into this a bit more later) it failed to garner the support of the young and first time voters; it failed to retain the support of those who have been its staunch supporters. Most importantly, UMNO failed to remember the reason for very existence.

I sense nothing but trepidation in the first few weeks after the general elections when one by one government institutions come under “reforms”, and then the attacks on the Rulers Institution, namely the institution of the Yang DiPertuan Agong. Hardly any word came out from UMNO’s leadership save for those that came from the normal members.

The strong hands that led to the resignation of two of our nation’s top judges also did not result in strong rebukes from UMNO despite it being a direct interference by one instrument of His Majesty’s government into another.

Of course I am of the opinion that the two top judges are also idiots for caving in and resigning as demanded. It was their job to show the independence of the judiciary and to protect the integrity of their institution, yet they failed miserably to show the example of stewardship to their subordinates as those in charge of that institution.

UMNO is a far cry of what it was back in the late 1970s, let alone what it was in 1946. Losing its power to govern also means that UMNO no longer enjoys the facilities that come with being a government. There have been members who left the party for the other side just because funds are no longer readily available as it was prior to May 9.

Branches find it difficult to hold their annual general meetings because the community halls are no longer available to them. Furthermore, they do not receive sufficient funds to hold their meetings at hotel meeting rooms. They have never had it this difficult and have no institutional memory of how it was before 1981 and Malaysia Incorporated. Members simply do not have the same fighting spirit possessed by their forefathers. What has happened to the ‘unity is strength spirit?

Furthermore, branches were set up without actually soliciting the support of the local residents. You can find that many of the branches are filled with people who are not from where the branch is actually located. How can these people understand the local issues? Branch leadership pays the annual membership fees for fear of being deregistered. How many UMNO members actually go to their respective branch to pay their annual dues?
Which is why at every UMNO General Assembly the Secretary-General would read out the number of UMNO members to-date, not realising that those are false numbers. It would have been almost impossible for UMNO to only get 2.55 million votes, including from non-UMNO members when there are 4 million members!

When the President was attacked from outside and within the party three years ago, hardly anyone stood up to defend him save for a few like Rahman Dahlan, Salleh Said and Ahmad Maslan. There was no ‘defending of the institution of the President’. It was every man for himself. I am of the opinion that members are to defend the leadership of the party when attacked, and change the leadership from within if needed.

How many division actually hold sessions with all members to explain about party policies, how to handle current critical issues after each general assembly? How many members who represented the division members actually attend the general assembly to listen to the speeches and proposals put forth by each state, instead of wanting to get as close as possible to personalities trying to push proposals or hand business cards to them?

There was very little done by UMNO divisions and branches to win the hearts and minds of the community they were supposed to represent. I only see programmes done for their own members.

On the federal level, you see more of UMNO members and members of the BN component parties attending ministerial events than from members of the local community. I chanced upon an event attended by a former federal minister who was lending support to a BN parliamentary candidate in one of my rounds to gauge the election temperature. Of the hundreds who attended, perhaps only a handful – less than 100 were from the local community. The rest were those who were following the former Minister, members of the RELA, police, local council and government officers from an agency the former Minister presided. You cannot gauge how much do the locals actually like the candidate because they were swamped by these extras.

UMNO is also famous for having one-off self-gratification programmes – blood donation, voters registration, skateboarding, free car wash. Unlike with the DAP, there were no follow-ups, no explanation done on why voters should be voting for BN, what a BN victory would mean for the voters.

UMNO’s information machinery at the branch and division levels was also absent. I have never seen any UMNO ‘ceramah’ at any kampung except during by-elections and general elections. Now that UMNO is the opposition, where is this machinery? It has been one month but everyone seems to be busy eyeing for party positions. Pakatan was already at it the moment the results of the previous general elections came out, and they never stopped.

UMNO needs a total overhaul and improvement in terms of mind-set, approach and its constitution. It needs to look at how PAS conducts itself as an opposition party, and its consistency.
In its party elections delegates would have to forget nostalgia. Some have not moved on from the ‘Najib Days’. Wake up. Najib is gone. He has stepped down. He may have been the best Prime Minister and party president but his branding failed. There is no point reviving that.

Instead, UMNO needs to look forward and have an approach that is outside the box. Vote for different people to do different things. The party president should not also be the person who is the Prime Minister-designate. The Prime Minister-designate should also not be the parliamentary Leader of the Opposition. UMNO would be better run if these three people are different people altogether. And top party offices cannot be held for more than two terms.

UMNO also needs to open up to members of other races – not necessarily as members, but members of an appendage: Friends of UMNO, who cannot vote in party meetings, but can run on UMNO ticket during elections. After all, UMNO used to have non-Malay members. PAS has been successful with this approach. There are so many BN-friendly non-Malays out there who do not want to be associated with the other BN component parties (there are only four BN parties left) but support the BN concept.

Talking about membership, UMNO should also allow for direct memberships, approved only at the headquarters level. This would allow for young professionals to join the party without being blocked by branch or division heads. And do away with the quota system if it is still there. As long as a member gets one nomination from a branch (or division for a national-level post), he or she should be eligible to run for any post in the division.

If UMNO is serious about making a comeback, it needs to forget the form it morphed into after 1981. It needs to evolve, incorporating the non-Malays for support, have its leadership subscribe to more accountability. Most importantly it needs to embrace the spirit of 1946 and have members who would not mind sacrificing for the party without ever expecting anything back. It needs to have hundreds of its own Rafizis without the negative aspects, and an information machinery that is aggressively going out there to win the hearts and minds of the masses. UMNO has to become a constructive opposition, with real professionals running and representing the party.

Until then, it can just dream on and wait for another 61 years.

(This article was first published by The Mole)