Lawyer: Dr M only needs support of MPs to be PM

The Star Online

KUALA LUMPUR: A senior lawyer agreed with Prime Minister-designate Tun Dr Mahathir Mohamad's interpretation that he can lead the country with the majority support of Members of Parliament (MPs).

Datuk Roger Tan (pic) said Article 43(2)(a) of the Federal Constitution refers to a member of parliament – not the party or coalition of the majority of the MPs.

"Since all the Pakatan MPs have signed a written declaration to support Tun Mahathir, it is hoped that all government institutions will immediately give effect to the sacrosanct will of the people expressed through the ballot box," he said.

Pakatan Harapan has asked the Yang di-Pertuan Agong Sultan Muhammad V to swear Dr Mahathir as the 7th Prime Minister by Thursday evening.

Dr Mahathir said he had the support of 135 MPs, surpassing the 112 needed for a simple majority.

His remarks come after outgoing prime minister Datuk Seri Najib Razak said he accepted "the will of the people" but stopped short of admitting defeat.

Dr Mahathir said that four parties in the coalition have also "written to the King, asking for a swearing-in ceremony to take place the sooner". 

Mourning a great leader

The Sunday Star

Legally Speaking by Roger Tan 

IN MEMORY: Sunday Star columnist Roger Tan paying tribute to the late Singapore founding father Lee Kuan Yew in the condolence book at the Singapore High Commission in Kuala Lumpur.

Spontaneous and emotional outpouring of grief by Singaporeans is indeed a testament to Lee Kuan Yew’s extraordinary achievement in creating a united nation out of a divided, polyglot, multi-racial and multi-religious population.

THE fact that today our Yang di-Pertuan Agong will represent Malaysia at Lee Kuan Yew’s funeral – an epochal event in the history of Singapore – speaks volumes of the island’s founding father as the greatest statesman in South-East Asia. 

In fact, President Richard Nixon held him up as a leader of similar stature as Winston Churchill. Most importantly, Lee was also instrumental in the formation of Malaysia and hence he and a generation of Singaporeans were once, albeit briefly, Malaysians between 1963 and 1965. 

Born on Sept 16, 1923, Lee read law at Cambridge University and obtained a starred double first and started practising as a lawyer in 1950 for almost a decade. As a legal assistant, he took up cases for trade unions, often on a pro bono basis. This undoubtedly helped him later to generate mass support for him when he became prime minister in 1959. 

Almost half a million Singaporeans have already turned up at Parliament House and the 18 community tribute sites to pay their last respects to the nonagenarian. Thousands more did not mind queuing for up to 10 hours the night before in order to reach the Parliament House where the body is lying in state. 

This spontaneous and emotional outpouring of grief by Singaporeans is indeed a testament to Lee’s extraordinary achievement in creating a united nation out of a divided, polyglot, multi-racial and multi-religious population. It is ironic that someone who had believed in Machiavelli, making him the most feared person in Singapore, is now someone who is most loved by his people. It is understandable that Singaporeans’ biggest regret is that their founding father would not be there on Aug 9 for their 50th national day celebrations. 

Lee was indeed a great leader in every sense of the word. He was humble enough to say sorry if he was wrong and if it was in the best interest of his county to do so. Hence, he had apologised to Malaysia a few times for some of his acerbic comments. 

He was also a first-class diplomat whose advice was often sought by leaders of superpowers even though he was just the head of “a little red dot” on the world map. 

Ex-judges must remain ethical

The Sunday Star

Legally Speaking by Roger Tan

Who a former judge later associates with and what he subsequently does or says will still be closely scrutinised by the public.

THE morning after I retired, a Rolls Royce arrived at my house with a message that I was required to attend a very important board meeting. Without further ceremony, I was taken to the penthouse of the Chartered Bank. Here, I was appointed chairman and required to call the meeting to order.

“There were only three items on the agenda. Caviar, champagne and any other matters arising therefrom. At noon, we adjourned to a private room in the Shangri-La for a sumptuous lunch. When I was driven back home at 3pm, I greatly regretted I had not retired years earlier!”

Those were the bantering words of one of Malaysia’s most celebrated judges, Tun Mohamed Suffian, at a dinner given in his honour shortly after his retirement as Lord President on Nov 12, 1982. At first glance, these may well be facetious remarks, but it does go to show that a retired judge can be commercially marketable and become an asset for any organisation to be associated with.

Needless to say, who an ex-judge later associates with and what subsequently he does or says will still be closely scrutinised by the public. His judicial conduct during his pre-retirement or resignation days may even be called into question if he later exhibits strong inclinations or preferences whether politically, socially or morally.

However, currently, the Judges’ Code of Ethics 2009, made pursuant to Article 125(3B) of the Federal Constitution, does not deal with the conduct of judges after their retirement or resignation. Hence, an ex-judge will have to be guided by his own conscience when he embarks on any post-retirement activities. Most of them will become an arbitrator or join a legal firm as its consultant or a statutory body as its chairman. To date, only three are said to have returned to the court as counsel – Tun Mohamed Salleh Abas, Datuk Kamalanathan Ratnam (better known as R.K. Nathan) and Datuk Gopal Sri Ram.

Civil disobedience cannot rule the law

The Sunday Star
by Roger Tan

Street Protest: Civil disobedience is becoming a popular tactical weapon used by politicians and civil rights movements to justify their violation of laws.

IN 1996, when my clients and I were negotiating with the Attorney-General’s Chambers, led by its then head of the advisory and international division Tan Sri Abdul Gani Patail, I warned that too high a rate might cause the public to refuse payment to privatised entities out of civil disobedience.

Then, both my learned friends across the table and my own clients were rather amused by my argument.

Today, this term “civil disobedience” appears to be the “in-thing” among politicians, particularly those from the opposition, backed by non-governmental organisations and civil rights and liberties movements.

It is becoming a popular tactical weapon used by them to justify their violation of laws which, in their view, are “unjust”, apart from indulging in some polemics.

Hence, we saw various street protests being held without a police permit in contravention of the Police Act (1967).

So, what is civil disobedience? I would define it as an open and deliberate law-breaking or infringement of rights to get public attention that is often politically motivated, and normally is carried out because the civil disobedients conscientiously feel, whether sincerely or otherwise, that they are morally obliged to do so.

Pressure groups around the world have, over the years, resorted to this means to secure their desired legal and social changes. But for an act to be considered civil disobedience, the disobedients must also be prepared to accept punishment for infracting the laws.

This is, in fact, fine with them as the courtroom will give them the publicity they seek for the causes and issues which they are advancing.

The father of the modern concept of civil disobedience is said to be American Henry David Thoreau (1817-1862). For six years, he refused to pay taxes because of his opposition to slavery and the Mexican-American War. For that, he was thrown into jail in July 1846, but he only spent one night in jail because the next day, his aunt, against his wishes, paid his taxes.

We are undoubtedly more acquainted with celebrated modern-day civil disobedients such as Mahatma Gandhi (1869-1948), Martin Luther King (1929-1968) and Rosa Parks (1913-2005).

Parks was fined for refusing to give up her bus seat to a white passenger but Gandhi and King were jailed for disobeying the law. There is no denying that Gandhi’s Satyagraha and King’s civil rights movements brought immense legal and social changes to India and the United States respectively.

These civil disobedients were much inspired by the words of St Augustine (354-430) that an unjust law is no law at all (lex iniusta non est lex). So, one is under a moral obligation to disobey such a law. King also added that “sometimes a law is just on its face and unjust in its application”.

The story told by Professor Charles Lund Black (1915-2001) of Yale Law School, an outspoken critic of the death penalty, about one Pawnee Indian brave named Peshwataro, best illustrates the operation and benefits of civil disobedience:

“The law of the Pawnee commanded that on the summer solstice there take place the sacrifice of the star maiden. A girl was each year captured from a neighbouring tribe and bound to a stake. At dawn, the Pawnee braves would ride in a circle about her and shoot their arrows into her.

Experts: Water issue needs thrashing out

There is a prediction that there will be a major water shortage issue by 2014, which will affect the people in the city. There is an urgent need to replace leaky pipes to resolve the issue of water wastage. – AFP

The Star

As the population in Kuala Lumpur grows, there will inevitably be higher demand for water and the increase in the number of people will also lead to more waste being generated.

The need for improved sustainability has been highlighted by IBM and Siemens in their study on Kuala Lumpur's sustainability. There is currently a water impasse between the Selangor government and Syarikat Bekalan Air Selangor Sdn Bhd (Syabas) . Syabas supplies water to Kuala Lumpur, Selangor and Putrajaya. The Government will intervene so that consumers will not be burdened by water issues, says Commissioner of the National Water Services Commission (Span) Roger Tan. Span, approved by Parliament in June 2006, came into force on Feb 1, 2007, to promote efficient water services management.

“Before 2005, the state government has authority over water issues. After some amendments to the law, the state government has juridiction only over raw water, which is untreated water while water companies focus on water treatment and supply,” Tan says.

The second issue is wastage. It was highlighted about a couple of weeks ago that Malaysians use an average of 226 litres of water per person daily, which is way above Singaporeans (154 litres) and the Thais (90 litres). Low tariff has led to high consumption.

Separate politics from civil service

Politicians should learn to work with the civil servants by winning their hearts and minds, just as in the United States and in the United Kingdom, whenever there is a change in government.

THE recent brouhaha over the appointment of former Selangor Jais director Datuk Mohd Khusrin Munawi as the new Selangor state secretary is really much ado about nothing.

In my humble opinion, the appointment made by the Federal Public Services Commission (PSC) under Article 52(1) of the Selangor State Constitution (SSC) is constitutional and lawful.

Let me explain.

Article 52(1) expressly provides as follows: “There shall be constituted the offices of State Secretary, State Legal Adviser and State Financial Officer; and the appointments thereto shall be made by the appropriate Service Commission from amongst members of any of the relevant public services.”

Taking the words of Article 52(1) literally, it would appear that the sole appointing authority of the three Selangor State officers is the “appropriate Service Commission”. The provision does not mention the need to consult or even obtain the prior consent of any other person, including the Selangor Sultan and Mentri Besar.

If at all the Service Commission had consulted or obtained the consent of the Sultan or Mentri Besar, then this was done out of courtesy but certainly not out of any legal obligation.

However, the position would have been different had the older version of Article 52(1) not been amended by the Constitution of Selangor (Second Part) (Amendment) Enactment, 1993.

The old version read as follows: “His Highness shall on the recommendation of the appropriate Service Commission by instrument under His Sign Manual and the State Seal appoint a person holding whole time office in the public services to be the State Secretary, the State Legal Adviser and the State Financial Officer respectively: Provided that before acting on the recommendation of the Service Commission His Highness shall consider the advice of the Mentri Bear and may once refer the recommendation back to the Commission in order that it may be reconsidered.”

The 1993 Constitution Amendment Enactment, which was brought about by the 1993 constitutional crisis, also deleted Article 51(6) which read: “In the event of there being no Service Commission having jurisdiction in respect of any appointment of any officers mentioned in Clause (1) such appointment may be made by His Highness acting in His discretion.”

Time to break the impasse

By not confronting racial and religious issues, civil court judges have abdicated their duty to uphold the people’s constitutional rights to equality and freedom of religion.

ON Nov 12, much to the dismay of many Malaysians, the Federal Court declined to answer five constitutional questions of public importance on unilateral conversion of children to Islam by one parent who has embraced Islam.

The case involved Shamala Sathiyaseelan, 38, and Dr Jeyaganesh Mogarajah, 42. The couple were married on Nov 5, 1998 according to Hindu rites in Alor Setar and the marriage was registered under the Law Reform (Marriage and Divorce) Act, 1976 (Act 164). Their sons, Saktiswaran and Theiviswaran – born in 1999 and 2001 – were Hindus at the time of their birth.

On Nov 19, 2002, Jeyaganesh converted to Islam. As a ‘saudara baru’ or muallaf, he is known as Muhammad Ridzwan bin Mogarajah. On Nov 25, 2002, Jeyaganesh converted the two minors to Islam without the knowledge or consent of Shamala. Saktiswaran’s Muslim name is Muhammad Firdaus Jeya while Theiviswaran is named Muhammad Asraf Jeya.

Shamala then went to the Kuala Lumpur High Court to challenge the conversions and seek custody of the minors. Justice Faiza Tamby Chik held on April 13, 2004 that since the two minors were now muallafs, Shamala should take them to Majlis Agama Islam Wilayah Persekutuan for help and advice to resolve the issue because under Article 121(1A) of the Federal Constitution, the civil court had no competency to determine the status of the minors’ conversion.

Meanwhile, Jeyaganesh had also obtained hadhanah (custody) of the two minors from the Mahkamah Tinggi Syariah Selangor on May 8, 2003. However, on July 20, 2004, in addition to an interim order made earlier in favour of Shamala on April 17, 2003, the High Court granted Shamala ‘actual custody’ or actual care and control, and the husband, ‘legal custody’ of the children.

A must-read speech by Robert Kuok

Even though it has been reproduced on many websites, below is one speech which must be read by all businessmen and politicians:

*Robert Kuok Hock Nien's notes on the past sixty years

(On the occasion of Kuok Group’s 60th Anniversary 10 April 2009)

(1) My brothers and I owe our upbringing completely to Mother. She was steeped in Ru-Jiao – the teachings of Confucius, Mencius, Laozi and other Chinese sages. Ru-Jiao teaches the correct behaviour for a human being on his life on earth. Mother gently, and sometimes strongly, drummed into the minds of her three boys the values of honesty, of never cheating, lying, stealing or envying other people their material wealth or physical attributes.

(2) Father died on 25 December 1948 night without leaving a will. Following the Japanese surrender, he had re-registered the firm as a sole proprietorship. We went to court to get an appointment as managers, permitting us to continue to manage Tong Seng & Co. The judge said that, as there were two widows, the firm and the estate should be wound up.

(3) We decide to establish Kuok Brothers Limited. In mid-January 1949, five of us met at a small roundtable in our home in Johore Bahru. Present were my MOTHER, cousin number five HOCK CHIN, cousin number twelve HOCK SENG, my brother HOCK KHEE nicknamed Philip (a..k.a. cousin number seventeen), and myself (a.k.a. cousin number twenty). We sat down and Mother said, “Nien, would you like to start?” I said, “Fine, yes I will start.” To cut the long story short, we got started, and commenced business from a little shop house in Johore Bharu on 1 April 1949.

(4) As a young man, I thought there was no substitute for hard work and thinking up good, honest business plans and, without respite, pushing them along. There will always be business on earth. Be humble; be straight; don’t be crooked; don’t take advantage of people. To be a successful businessman, I think you really need to brush all your senses every morning, just as you brush your teeth. I coined the phrase “honing your senses” in business: your vision, hearing, sense of smell, touch and taste. All these senses come in very useful.

(5) Mother was the captain of our ship.. She saw and sensed everything, but being a wise person she didn’t interfere. Yet she was the background influence, the glue that bound the Group together. She taught my cousins and my brothers and me never to be greedy, and that in making money one could practise high morality. She stressed that whenever the firm does well it should make donations to the charities operating in our societies. She always kept us focused on the big picture in business. For example: avoid businesses that bring harm, destruction or grief to people. This includes trades like gambling, drugs, arms sales, loan-sharking and prostitution.

(6) We started as little fish swimming in a bathtub. From there we went to a lake and now we are in the open seas.. Today our businesses cover many industries and our operations are worldwide but this would not have been possible without the vision of the founding members, the dedicated contributions and loyalty of our colleagues and employees, and very importantly the strong moral principles espoused by my mother.

(7) When I hire staff, I look for honest, hardworking, intelligent people. When I look candidates in the eye, they must appear very honest to me. I do not look for MBAs or exceptional students. You may hire a brilliant man, summa cum laude, first-class honours, but if his mind is not a fair one or if he has a warped attitude in life, does brilliance really matter?

(8) Among the first employees were Lau Teo Chin (Ee Wor), Kwok Chin Luang (Ee Luang), Othman Samad (Kadir) and an Indian accountant called Joachim who was a devout Roman Catholic and who travelled in every day from Singapore where he lived.

(9) I would like on this special occasion to pay tribute to them and in particular to those who were with us in the early days; many of whom are no longer here. I have already mentioned Lau Teo Chin (Ee Wor) and Kwok Chin Luang (Ee Luang) and Othman Samad (Kadir), there are others like Lean Chye Huat, who is not here today due to failing eyesight, and Yusuf Sharif who passed away in his home country India about one and a half years ago and the late Lee Siew Wah, and others who all gave solid and unstinting support and devotion to the Company. It saddens me that in those early difficult years these pioneers did not enjoy significant and substantial rewards but such is the order of things and a most unfortunate aspect of capitalism. However through our Group and employee Foundations, today we are able to help their descendants whenever there is a need to.

(10) I have learnt that the success of a company must depend on the unity of all its employees. We are all in the same boat rowing against the current and tide and every able person must pull the oars to move the boat forward. Also, we must relentlessly endeavour to maintain and practise the values of integrity and honesty, and eschew and reject greed and arrogance.

(11) A few words of caution to all businessmen and women. I recall the Chinese saying: shibai nai chenggong zhi mu (failure is the mother of success). But in the last thirty years of my business life, I have come to the conclusion that the reverse phrase is even truer of today’s world: chenggong nai shibai zhi mu. Success often breeds failure, because it makes you arrogant, complacent and, therefore, lower your guard.

(12) The way forward for this world is through capitalism. Even China has come to realise it. But it’s equally true that capitalism, if allowed to snowball along unchecked, can in many ways become destructive. Capitalism needs to be inspected under a magnifying glass once a day, a super-magnifying glass once a week, and put through the cleaning machine once a month.

In capitalism, man needs elements of ambition and greed to drive him. But where does ambition end and greed take over? That’s why I say that capitalism, if left to its own devices, will snowball along, roll down the hill and cause a lot of damage. So a sound capitalist system requires very strongly led, enlightened, wise governments. That means politician-statesmen willing to sacrifice their lives for the sake of their people. I don’t mean politicians who are there for fame, glory and to line their pockets.

(13) To my mind the two great challenges are the restoration of education in morals and the establishment of a rule of law. You must begin from the root up, imbuing and infusing moral lessons and morality into youth, both at home and from kindergarten and primary school upward through university. To accept the principle of rule of law; then you have to train upright judges and lawyers to uphold the legal system.

(14) Wealth should be used for two main purposes. One: for the generation of greater wealth; in other words, you continue to invest, creating prosperity and jobs in the country. Two: part of your wealth should be applied to the betterment of mankind, either by acts of pure philanthropy or by investment in research and development along the frontiers of science, space, health care and so forth.

*Tan Sri Robert Kuok Hock Nien (born 6 October 1923, in Johor Bahru, Johor), is an influential Malaysian Chinese businessman. According to Forbes his net worth is estimated to be around $10 billion on May 2008, making him the richest person in Southeast Asia. He is media shy and discreet; most of his businesses are privately held by him or his family. Apart from a multitude of enterprises in Malaysia, his companies have investments in many countries throughout Asia. His business interests range from sugarcane plantations (Perlis Plantations Bhd), sugar refinery, flour milling, animal feed, oil and mining to finance, hotels, properties, trading, freight and publishing.

Cabinet puts interest of the child first

THE cabinet of Prime Minister Datuk Seri Najib Razak should be commended for having the gumption to tackle the longstanding, highly emotive issue of the effect of one partner's conversion to Islam after a civil marriage.

On Thursday, Minister in the Prime Minister's Department Datuk Seri Mohamed Nazri Abdul Aziz made a surprise announcement that the cabinet had decided that a child's religion must be in accordance with the common religion at the time of marriage between the parents in the event that one of them opts to convert.

This decision to maintain the status quo as regards the child's religion is also in accordance with the well-established principle that the interest of the child of marriage is of paramount importance.

Nazri also stressed that conversion must not be used as a ground to automatically dissolve a marriage or to get custody of children.

He added that the cabinet also decided that a marriage solemnised under civil law could only be dissolved in the civil court.

This is indeed a landmark decision which reflects the voice of moderation and reason, something which could best be described initially as almost unbelievable.

It is reassuring to know that after so many years, it now takes a new prime minister to make it look as if resolution to this problem can be rather simple if only our leaders have the political will to do it.

By making this decision, our leaders have set a fine example to their countrymen of the importance of exercising mutual tolerance in our multi-religious country. It also lends credence to Najib's 1Malaysia concept.

The government's decision is, in fact, in line with the 1994 decision of the Supreme Court in Tan Sung Mooi (F) v Too Miew Kim, where judge Mohamed Dzaiddin, in delivering the decision of the court which also comprised Lord President Abdul Hamid Omar, Chief Justice Gunn Chit Tuan, judge Edgar Joseph Jr and judge Mohd Eusoff Chin, said trenchantly:

"Under s.51 (Law Reform (Marriage and Divorce) Act 1976), where one party to a marriage has converted to Islam, the other party who has not so converted may petition for divorce and the court, upon dissolving the marriage, may make provision for the wife or husband and for the support, care and custody of the children of the marriage and may attach any condition to the decree of dissolution.

"The legislature, by enacting s.51, clearly envisaged a situation that where one party to a non-Muslim marriage converted to Islam, the other party who has not converted may petition to the High Court for divorce and seek ancillary reliefs...

"Further, it would seem to us that Parliament, in enacting sub-section 51(2), must have had in mind to give protection to non-Muslim spouses and children of the marriage against a Muslim convert...

"It would result in grave injustice to non-Muslim spouses and children whose only remedy would be in the civil courts if the High Court no longer has jurisdiction, since the syariah courts do not have jurisdiction over non-Muslims."

While the above dictum was later adopted by the Federal Court in the celebrated case of Subashini Rajasingam v Saravanan Thangathoray 2007, judges Datuk Nik Hashim Nik Ab Rahman and Datuk Azmel Maamor, who formed the majority, also ruled, rather confusingly, that the converted husband could still seek divorce in the syariah court albeit the rulings made by the syariah court would not bind the civil court.

The Federal Court went further to rule that any parent had a right to convert the child of marriage to Islam.

It held that the word "parent" in article 12(4) of the Federal Constitution which states that the religion of a person under the age of 18 shall be decided by his parent or guardian, means a single parent.

Further, reliance could not be placed on s.5 of the Guardianship of Infants Act 1961 which gives the mother equal parental rights over the child as the 1961 Act does not apply to Muslims, including the converted father.

It follows that unless a new Federal Court panel departs from the Subashini Rajasingam decision in a future case, intervention from Parliament will be necessary to give effect to the latest decision of the cabinet that any change in the child's religion must require the consent of both parents in addition to removing any overlapping jurisdictions of the civil and syariah courts.

It is hoped that the government will amend the relevant federal laws as well as to cause the state governments to make changes to their state Islamic enactments.

I pray, too, that the sultans, being the heads of Islam in the states, will give their royal assent to the legislative amendments as non-Muslims are also their subjects who look up to their royal highnesses to protect their interests.

I believe that this latest move by the Najib administration is good for the country because history has proven over and over again that moderation and fairness are vital in achieving national cohesion in a multi-racial and multi-religious society.

Hence, it is rather unacceptable for Parti Keadilan Rakyat member of parliament Zulkifli Noordin to move, though unsuccessfully, in the March parliamentary sitting to amend the Federal Constitution to state that any law which is inconsistent with the Constitution shall be deemed void, except for Islamic legislation; thereby making Islamic law the supreme law of the land.

Published in the New Sunday Times, 26 April 2009

Speaker's behaviour bizarre

THE speaker of the Perak state assembly is indeed an interesting character. Tronoh state assemblyman V. Sivakumar from the DAP made history by becoming the first Indian to be elected speaker of a legislative assembly in Malaysia.

In fact, his name did not make headlines until recently. In June last year, Sungai Rapat assemblywoman Hamidah Osman had to apologise and retract her derogatory remark when she asked if Sivakumar would "agree to disagree" with the well-known fable of whether a snake or a man from a particular race should be killed first.

This insensitive remark also caused the Perak Umno and Barisan Nasional to later apologise to the Indian community who felt offended by it. But Hamidah was not referred to the Committee of Special Privileges.

Instead, last Wednesday, the committee, chaired by Sivakumar, summoned Menteri Besar Datuk Dr Zambry Abdul Kadir and his six executive councillors to appear before it over a complaint made by Canning assemblyman Wong Kah Woh that Zambry and the six exco members had shown contempt for the house allegedly by getting themselves appointed to their positions.

After a meeting which lasted only about 30 minutes, Sivakumar announced that Zambry had been barred from attending assembly sittings for 18 months. The six exco members were barred for 12 months.

Interestingly, just four days before the meeting, Sivakumar was reported to have said at a press conference that the purpose of the meeting was to gather information and compile a report.

He added that the report would then be presented when the house sits, and it would then be up to the house to decide on the actions to be taken.

This is consistent with the Perak state assembly's Standing Orders 72 and 78 which expressly require the report of the committee to be tabled in the legislative assembly for approval and adoption.

I find Sivakumar's behaviour in the entire affair since the fall of the Pakatan Rakyat state government rather bizarre.

It is a well-known convention that a speaker must be politically neutral. In England, as soon as the speaker is elected, he has to resign from his political party and stay away from political issues. Political impartiality of the speaker is implied in article 44(3) of the Perak state constitution which provides that the speaker is not entitled to vote unless it is necessary to avoid an equality of votes.

While it is understandable that a speaker within our Malaysian context will make procedural rulings in favour of his own party, Sivakumar's conduct, especially outside the proceedings of the assembly, can only be described as disturbing.

He played an active part politically the very moment news broke that Jamaluddin Mat Radzi and Mohd Osman Mohd Jailu had decided to become independents.

First, Sivakumar allegedly said the undated letters of resignation were faxed to his home. Later, he allegedly corrected himself by saying the letters were actually hand-delivered by some unknown persons.

He was on television to announce that the two assemblymen had vacated their seats, not alone from the speaker's office but at a press conference flanked by the previous executive councillors.

He also announced that the two independents had been barred from attending the sittings of the assembly prior to the sultan's decision to appoint Zambry, making it near impossible for a full assembly to be convened to take a vote of confidence on Datuk Seri Mohammad Nizar Jamaluddin.

Hence, I am surprised that, having played such an active role, it did not cross his mind at all that it would be wrong for him to either chair or attend the committee of special privileges hearing against Zambry and his exco members.

This goes against one of the fundamental rules of natural justice -- nemo judex in causa sua which means no one should be a judge in his own cause.

To hold that Zambry and the others are in contempt of the house by getting appointed is as good as saying the sultan is also in contempt by appointing them.

Based on this ground alone, the validity of the suspension decision of the committee can be challenged.

This is not prohibited by Article 72(1) of the Federal Constitution which reads: "The validity of any proceedings in the legislative assembly of any state shall not be questioned in any court."

Under Article 160(2) of the Federal Constitution, "legislative assembly" as defined does not include any of its committees.

While Sivakumar may be insulated from any proceedings in any court in respect of anything said or any vote given by him when taking part in proceedings of the committee under Article 72(2) of the Federal Constitution, Article 72(1) clearly does not exclude any proceedings of any committee of the legislative assembly from judicial scrutiny because unlike Article 72(2), Article 72(1) does not contain the words "or any committee thereof".

Further, the counterpart provision for Parliament is Article 63(1) of the Federal Constitution and this article, unlike Article 72(1), expressly provides that the validity of any proceedings in either house of Parliament "or any committee thereof" shall not be questioned in any court.

In this respect, the Supreme Court in the majority decision of Haji Salleh Jafaruddin v Datuk Celestine Ujang & Ors 1986 deliberately left open the question whether Article 72(1) applied to proceedings in the committee of privileges of a state assembly. Judge Mohamed Azmi also opined that should the words "any proceedings" in Article 72(1) arise for determination in future, perhaps a panel of more than three judges of the apex court should consider whether the court's power is exercisable in respect of quasi-judicial or even administrative proceedings of the state legislative assembly or its committee, as distinguished from its legislative proceedings, having regard to the doctrine of separation of powers.

It follows that whether this matter is brought to the courts or not, the assembly should be immediately convened without barring any elected representative to discuss the suspension order and to enable a vote of confidence on the government to be taken.

Otherwise, fresh elections should be held in order not to prolong the political instability which is bad for both Perak as well as the country.

To quote the 15th American president, James Buchanan, "the ballot box is the surest arbiter of disputes among free men".

Published in the New Sunday Times, 22 February 2009

Thorny issues that need attention

THE Perak fiasco seems to continue unabated, and a long-drawn legal battle appears inevitable.

Three vexed legal issues have arisen, and they are:

- whether undated letters of resignation are valid.

- whether the Election Commission has acted ultra vires (beyond its powers) when it decided not to call for by-elections in the seats of Behrang and Changkat Jering.

- whether the Sultan of Perak has erred constitutionally by asking Datuk Seri Mohammad Nizar Jamaluddin to resign when no motion of no-confidence had been passed against the latter in the state assembly.

On the first issue, Pakatan Rakyat will have to convince the court it should not follow the 1982 decision of the Federal Court in Datuk Ong Kee Hui v Sinyium Mutit, which held that such an arrangement is void and the court will not lend its aid to an illegal transaction as it is against public policy.

In giving the judgment of the Federal Court, judge Tun Salleh Abas said: "The system of representative government is based upon freedom of choice. The electors must be free to choose a candidate to represent them in the legislature, whilst the candidate who is successfully returned must in turn be free to act in accordance with his independent judgment. Any arrangement depriving him of this independence is frowned upon by the law as violating public policy."

The second issue revolves around Article 36(5) of the Perak Constitution which reads: "A casual vacancy shall be filled within 60 days from the date which it is established that there is a vacancy."

The word "establish" connotes something has to be done to ascertain whether a casual vacancy has arisen. It is interesting to note that only two other state constitutions use the word "establish" -- Sabah and Sarawak.

The others contain an almost identical provision stating that a casual vacancy is to be filled within 60 days on which it occurs.

However, the Perak Constitution is silent as to who should "establish" there is a casual vacancy. But to say that it is not the business of the Election Commission to establish a casual vacancy has arisen may not be entirely correct.

In fact, Article 21(5) of the Sarawak Constitution and Article 54(1) of the Federal Constitution expressly and respectively provide that casual vacancies in the Sarawak Assembly and Dewan Rakyat are to be established by the Election Commission.

Article 113(1) of the Federal Constitution provides that the Election Commission shall, subject to the provisions of federal law, conduct elections.

The federal law in question is the Elections Act 1958, and Section 12(3) of the act provides as follows: "In relation to a vacancy which is to be filled at a by-election, a writ shall be issued not earlier than four days and not later than 10 days from the date on which it is established by the Election Commission that there is a vacancy."

It follows that for Pakatan Rakyat to succeed on this issue, it has to convince the court that, taking the Perak Constitution in totality, it is the speaker who establishes when a casual vacancy has occurred.

The third issue involves the interpretation of Article 16(6) of the Perak Constitution, which reads: "If the menteri besar ceases to command the confidence of the majority of the members of the Legislative Assembly, then, unless at his request His Royal Highness dissolves the Legislative Assembly, he shall tender the resignation of the State Executive Council."

Of course, if the Sultan of Perak had decided to dissolve the state assembly based on the ground that the three independents -- Jamaluddin Mohd Radzi, Mohd Osman Mohd Jailu and Hee Yit Foong -- had vacated their seats, then that would also mean the sultan would have prejudged the issue by saying the EC is wrong by not calling for by-elections.

The issue is how the sultan determines that the menteri besar ceases to command the confidence of the majority of the members of the legislative assembly if no vote is taken in the assembly against the menteri besar.

It was decided as far back as in 1966 in the case of Stephen Kalong Ningkan v Tun Abang Haji Openg & Tawi Sli that the Sarawak governor only had the power to dismiss the chief minister if the lack of confidence had been demonstrated by a vote in the Council Negri.

However, the Kota Kinabalu High Court did not follow the 1966 decision in Datuk Amir Kahar Tun Mustapha v Tun Mohd Said Keruak & Ors 1995.

The court held that a vote in the assembly is not the only means to determine the confidence of the members of the assembly in the chief minister and it depends on the circumstances. The court added that other extraneous matters may provide sufficient evidence to establish the fact that the chief minister has ceased to command the confidence of a majority of the members of the state assembly.

The court further held that the 1966 case must be distinguished, being a decision based on its own facts and circumstances, because the alleged loss of confidence was highly suspect.

Here, the Sultan of Perak went one step further by sitting down with each of the three independents to satisfy himself that all three of them no longer supported Nizar and, therefore, the Pakatan Rakyat government.

The alleged loss of confidence was convincing enough for the sultan to decide that Nizar should resign in accordance with Article 16(6) of the Constitution.

Hence, Pakatan Rakyat will have to convince the court that sovereign discretion is justisiable, and that without a vote in the assembly, the sultan could not ask Nizar to resign.

Whatever it is, the events in Perak have convinced me even more that we should have anti-hopping legislation.

As I said in an earlier article, "Anti-hopping law vital for stability", on June 22 last year, politicians from all divides should very well remember that what goes around will come around to haunt them.

Published in the New Sunday Times, 08 February 2009

Reps can rescind quit letters, say lawyers

New Straits Times

by David Yeow and Azura Abbas

KUALA LUMPUR: Perak Parti Keadilan Rakyat assemblymen Jamaluddin Mohd Radzi (Behrang) and Mohd Osman Mohd Jailu (Changkat Jering) can rescind their undated resignation letters, say legal experts.

Lawyer Datuk Baljit Singh Sidhu said the two assemblyman could retain their posts despite allegations that they had vacated their seats.

"All they have to do is inform the Election Commission that they have not resigned as members of the Perak state assembly.

"The resignation letters could be retracted on the grounds that the two have had a change of heart," said Baljit, who is Federal Territory legal bureau chairman.

"There is no law to stop them from revoking whatever they signed before.

"If the two can sign it freely, they can also freely revoke their intention."

He said that despite claims by Perak Speaker V. Sivakumar that he had handed the two resignation letters to the state EC, the move could be reversed by having both assemblymen file an application with the commission to quash the resignation letters.

"At the same time, they can also inform the EC of their intention to change party, if need be."

Senior lawyer Roger Tan said the letters could also be revoked if the two politicians could prove that they had been coerced into signing them.

"I think one of the politicians has stated that he was forced to sign his resignation letter. That statement itself has raised the legality of the letter."

He added that any agreement entered into under duress would be struck out as null and void by the courts.

He added that party-hopping was not unlawful in Malaysia and no document could restrict an individual from doing something lawful.

"Article 10(1)(c) of the Federal Constitution expressly states that all citizens have the right to form associations, that is, to join, not to join or leave any association.

"This means that if the resignation letters were signed to impede politicians from crossing over, then the agreement itself is unconstitutional and cannot be enforced."

According to Tan, in 1992, the then Supreme Court (now Federal Court) had the opportunity to decide in the case of Dewan Undangan Negeri Kelantan v Nordin Salleh 1992 whether an amendment to the Kelantan constitution which prohibits party-hopping was inconsistent with Article 10(1)(c).

Article XXXIA of Part I of the Kelantan constitution pro- vides that if any member of the legislative assembly who is a member of a political party resigns or is expelled from, or for any reason ceases to be a member of such political party, he shall cease to be a member of the legislative assembly and his seat shall become vacant.

The Supreme Court declared that such a law was invalid because the restriction imposed by the Kelantan constitution could not be a restriction imposed under clauses 2(c) and (3) of Article 10 as it was a law passed by a state legislature and not the Federal Parliament.

Tan, who was formerly the Malaysian Bar Council's conveyancing practice committee chairman, said the Perak episode was another reason why Malaysia needed laws against party-hopping.

"If only we had an anti-hopping legislation now, there would not be so much politicking and uncertainty going on with members of political parties sardonically enticing each other to join them.

"If we can have Article 48(6) of the constitution which disqualifies a person who has resigned from the Dewan Rakyat from running again in a general election for five years from the date of his resignation, then I see no reason why we should not have a law requiring any MP who defects to another political party to resign so that a fresh election can be held."

Anti-hopping law vital for stability

LAST Wednesday, the president of the Sabah Progressive Party (SAPP), Datuk Seri Yong Teck Lee, said his party had lost its confidence in the leadership of the prime minister, Datuk Seri Abdullah Ahmad Badawi. Yong also revealed that its two members of parliament would either table or support a motion of no confidence against the prime minister tomorrow.

On Friday, the party's supreme council endorsed Yong's no confidence motion against the prime minister but did not make any decision whether to quit the Barisan Nasional.

Apparently, this is not the first time Yong has made such a dramatic political move.

On Oct 15, 1990, Yong was among some of the Parti Bersatu Sabah (PBS) leaders who were instrumental in abruptly pulling the party out of the BN on the eve of that year's general election.

The then prime minister, Datuk Seri (now Tun) Dr Mahathir Mohamad, called the act as evil as stabbing him in his back.

Yong obviously thought then that the BN government would fall when PBS threw its support behind Gagasan Rakyat and Semangat 46 led by Tengku Razaleigh Hamzah. He was wrong.

The scenario was best captured by DAP's Lim Kit Siang in his media statement issued on Nov 19, 2001:

"The PBS leaders who came over to Peninsular Malaysia to assess the political climate in the run-up to the 1990 general election were led by Tan Sri Bernard Dompok, then PBS deputy president, and Datuk Yong Teck Lee, then a PBS vice-president.

"From their political assessments, both Dompok and Yong believed that Malaysia was on the cusp of unprecedented political change, and that the 1990 general election could see the downfall of Dr Mahathir and the rise of Tengku Razaleigh to take over the Federal Government as prime minister.

"For reasons which both Dompok and Yong are the best persons to explain, both of them believed that there were the 'numbers' for such a change of government, that Gagasan Rakyat could win over 60 parliamentary seats in Peninsular Malaysia, that a Barisan Nasional party in Sarawak was on the verge of defecting from BN to Gagasan Rakyat involving over 20 parliamentary seats and that PBS with control of over 15 parliamentary seats could be the king-maker in Malaysian politics in deciding the toppling of Dr Mahathir and the election of Tengku Razaleigh as the new prime minister of Malaysia."

This is not all. In 1994, Yong abandoned PBS and his mentor, Datuk Seri Joseph Pairin Kitingan, to form the SAPP just before the state elections, which eventually helped cause Pairin's two-week-old government to collapse. But PBS returned to the BN fold in 2002.

It now calls into question whether party-switching or hopping is illegal, if not immoral in Malaysia.

In fact, this issue has been cropping up ever so often since the March 8 general election.

Legally, party-hopping is not unlawful.

Article 10(1)(c) of the Federal Constitution expressly states that all citizens have the right to form associations, that is, to join, not to join and leave any association, but Parliament may by law impose such restrictions as it deems necessary in the interest of the security of Malaysia or any part thereof, public order, morality, labour or education.

In 1992, the Supreme Court (now Federal Court) had the opportunity to decide in the case of Dewan Undangan Negeri Kelantan v Nordin Salleh 1992 whether an amendment to the Kelantan state constitution which prohibits party-hopping is inconsistent with Article 10(1)(c). Article XXXIA of Part I of the Kelantan constitution provides that if any member of the Legislative Assembly who is a member of a political party resigns or is expelled from, or for any reasons whatsoever, ceases to be a member of such political party, he shall cease to be a member of the Legislative Assembly and his seat shall become vacant.

The Supreme Court declared that such a law was invalid because the restriction imposed by the Kelantan Constitution could not be a restriction imposed under clauses 2(c) and (3) of Article 10 as it was a law passed by a state legislature and not the Federal Parliament.

In the words of Justice Tan Sri Gunn Chit Tuan: "I cannot, by any stretch of imagination, see how such a restriction on the membership of a Legislative Assembly, which infringes a citizen's right to form associations under Article 10(1)(c) of the Federal Constitution, can be deemed necessary or expedient in the interest of Malaysia or any part thereof, public order, morality or even labour or education."

However, neither Gunn nor the other two Supreme Court judges, Tun Abdul Hamid Omar and Tan Sri Edgar Joseph Jr expounded further why such legislation would not be in the interest of the security of Malaysia, public order or morality except to imply that the word "morality" related to immoral activities in a sexual sense.

But later in 2005, the Court of Appeal held in Sivarasa Rasiah v Badan Peguam Malaysia & Anor that Section 46A(1)(c)(ii) of the Legal Profession Act 1976 is one example of such restrictions which Parliament may impose in the interest of "morality" as it involved the issue of ethics.

This section prohibits any person who is holding an office in any political party from becoming an elected member of the Bar Council or a Bar Committee or a member of any of its committees.

Justice Datuk (now Tan Sri) Alauddin Mohd Sheriff said the word "morality" should be given a broad, liberal and extensive meaning, wider than merely good values. As "morality" was not defined in the Federal Constitution, Alauddin went on to say the word in the Federal Constitution should be given its ordinary meaning.

He then adopted the meaning from the New Shorter Oxford English Dictionary on Historical Principles by Lesley Brown, Volume 1, which defines "morality" to include the doctrine or branch of knowledge that deals with right and wrong conduct and with duty and responsibility; moral philosophy, ethics.

With these two decisions, it would mean only Parliament and not any state legislature can bring in a law to prohibit party-hopping. If such law can be justified on the grounds of "morality", then no amendment to the Federal Constitution will be necessary and the government will only need a simple majority to pass an anti-hopping legislation.

So, we must now answer the second question whether party-hopping is immoral, not in a sexual sense albeit the hopper's enemies may very well throw obscenities at him.

Indeed, Datuk Ibrahim Ali, often described as one of Malaysia's most habitual party-hoppers, does not think so.

He argued that just like a human marriage, a political marriage can naturally lead to a divorce, and any anti-hopping law will be against human rights principles.

In fact, other countries have taken totally divergent legal positions on this issue.

In South Africa, amendments were made to its Constitution and other laws in 2006 to enable party-hopping by removing clauses which required members of the National Assembly to give up their seats should they change parties.

On the other hand, New Zealand enacted the Electoral Integrity Act of 2001 (since expired) to proscribe party-hopping or waka-jumping (in its local language) requiring politicians elected from a party to resign from Parliament if they left their party's parliamentary caucus.

In my view, party-hopping is not only against morality, it is a nefarious act of betrayal against the politician's own party and the people who have voted him in because of his association with a particular political party. Party-hopping, therefore, has no place in a parliamentary democracy like ours. Party-hopping breeds corruption -- not just in the monetary sense as it is also a corruption of power.

If any government comes into existence through this unethical means, it has no moral credibility to govern. Neither does it have any moral authority to preach on accountability and good governance.

As a matter of principle, any person who wishes to abandon ship and cross over should seek a fresh mandate from the electorate, failing which his act of divorcing from the party which the people have voted in is equipollent to committing an act of dishonesty.

In the oft-quoted words of the 15th American president, James Buchanan, "The ballot box is the surest arbiter of disputes among free men."

Further, if we can have Article 48(6) of the Constitution which disqualifies a person who has resigned from the Dewan Rakyat from running again in a general election for a period of five years from the date of his resignation, then I see no reason why we should not have a law requiring any MP who defects to another political party to resign so that a fresh election can be held.

If only we had an anti-hopping legislation now, there would not be so much politicking and uncertainty going on with members of various political parties sardonically enticing each other to join them.

A fortiori, the country can also move on by accepting the March 8 general election results as final and incapable of being altered.

An anti-hopping law will bring about and maintain political stability, and politicians from all divides should very well remember that what goes around will come around to haunt them, and it is in their interest to support an anti-hopping legislation.

To conclude, let me quote South African Inkatha Freedom Party president Mangosuthu Buthelezi on party-hopping: "Floor-crossing is like the HI-virus because it robs the political system of all honour, holding political parties hostage by rendering them unable to discipline their own members. It allows the emergence of careerists, self-serving politicians, which are a very strange breed because they do not honour the sanctity of the vote cast in the ballot box."

I will not judge but I shall leave it to you readers to decide whether a political hopper is like a HIV-carrier. Likewise, whether our society should treat a political leaper like a political leper.

On shaky terrain

The results of the 12th general election show that the Barisan is not invincible after all. The people now have opened their eyes to know what people power can do.

IF people of Pakistan, Taiwan, Thailand and Australia can do it, so can we. If Dato’ Anwar can swing 30% of Malay votes in Malay heartland, Hindraf 80% of Indian and DAP 50% of Chinese votes, we may see a new government. Vote opposition...” That was the text message I received from a friend in the Opposition a few days before the general election.

Obviously, when one lives in the bastion of Barisan Nasional – Johor – one could only dismiss it with a wry smile.

But a few days before the election, signs became visible that the Opposition was gaining ground, judging from the huge turnouts in their ceramahs-turned-rallies and anti-establishment mood prevailing in cyberspace.

As the results turned out, an unprecedented swing took place from all the races in the country, particularly the urban and poor Malays.

The voting pattern has obviously emerged with Malays now not hesitating to vote for the DAP and the non-Malays, for PAS. Similarly, how many of the Malays were actually Indonesians-turned-Malaysians, no one knew either. Neither would one dare to surmise what the outcome would have been if more than four million Malay unregistered voters had cast their votes this time.

However, one thing is certain – the taboo of replacing the Barisan government has been broken. The people now have opened their eyes to know what people power can do and that the Barisan is not invincible after all.

While many this time had just wanted to register a protest vote, they as well as the Opposition probably did not expect that that would bring about a change in four state governments.

The other thing is also certain – fear no longer works now for Malaysians.

Whatever it is, the results obviously showed the populace’s unhappiness with the Barisan government. The Obama-change mood was prevalent as all that many voters wanted to tick on the ballot paper was any party, as long as it was not the Barisan.

It did not matter to them that:

• the DAP is now working with PAS, and vice versa.

• PKR candidates hold wholly divergent views on race and religion – with those fielded in the cities believing in freedom of religion under Article 11 and others in the Malay heartland who do not.

• a DAP candidate has been disciplined by the Advocates & Solicitors Disciplinary Board; and

• a PKR candidate in Penang has wrongly stated that he is a member of the Malaysian Bar Council when he is not.

The Barisan government, instead of portraying itself as compassionate, such as creating the environment for the release of Datuk Seri Anwar Ibrahim from prison and the setting up of the Royal Commission of Enquiry on the Lingam tape, launched what voters viewed as personal attacks against Anwar.

The Prime Minister’s caution that the non-Malays would not be represented in the government did not go down well with them who took it as a threat. Likewise, his statement that he did not want to form a government based on one race did not appeal to the urban Malays who felt that he was counting his chickens before they were hatched, similar to the Gerakan leadership announcing the three possible candidates for the Penang Chief Ministership before they had even been elected.

Also, we must not forget the last-minute about-turns by the Election Commission on the use of unstamped statutory declarations and indelible ink.

All said, this time round we must give credit to the Opposition for being able to ride on the wave of anger, not so much of change, against the Barisan. For example, the Opposition put up posters relating to the keris incident in Chinese majority areas and that of the Zakaria mansion in Malay kampungs in Penang.

As for the MCA, it only obtained 15 out of the 40 parliamentary seats it contested. Comparatively, among the Barisan component parties, the MCA’s top leadership is the least controversial. Moreover, the MCA’s amendment of its constitution allowing its President to hold office for not more than three terms went down well with the people – something no other political party or leader in the Barisan and Opposition had tried doing. Also, many MCA elected representatives served their constituencies well through their service centres.

While many had expected a reduction in the MCA seats this time round, none had expected such a dismal performance. What actually caused it?

Two plausible causes:

• The urban population in Kuala Lumpur, Selangor and Penang where many MCA seats are situated wanted a strong Opposition; and

• MCA’s association with Umno, Gerakan and MIC – a victim of one for all, all for one principle.

The mood in the cities is that the Barisan’s 2004 win of 90% of the seats had made them too powerful to the extent of becoming an elective dictatorship. Most were concerned about the independence of the judiciary and the rule of law, and the revelations in the Lingam Tape enquiry woke up many on such a need even though these revelations were more related to events that took place during the Mahathir administration.

So, when Malay intellectuals started appearing in DAP ceramahs advocating a need for that, this only strengthened the Chinese urbanites’ resolve. This was also egged on by the former prime minister, Tun Dr Mahathir, who still commands much respect among the Chinese community, when he too advocated for a strong voice against the Government.

The Malays and Chinese, too, were attracted to Anwar’s statement that the Opposition would work on a new economic agenda based on need rather than race as the NEP has only benefited the well-connected.

It follows that even if one had put the best MCA leader in the Klang Valley, he would still have lost. That was what happened to a good Umno minister like Datuk Sharizat Jalil, who lost to a political novice.

Secondly, the swing against Umno caused the MCA to lose in Chinese marginal seats which depended on Malay votes. The people of Penang’s dissatisfaction with Gerakan and wanting to change the Government also translated into votes against the MCA.

The MIC President’s refusal to step aside also caused 80% of Indian voters to turn against the Barisan in these marginal seats.

Further, the Opposition this time round parachuted well-known activists from civil rights groups who are intelligent and eloquent compared to the MCA whose hands are still tied as it had to first consider grassroots leaders who are more used to looking at local issues rather than larger issues like freedom and human rights.

Take the Bakri parliamentary seat, for example. The swing against Umno actually helped the DAP candidate when Malays too voted for the DAP. Umno lost the state seat Sungai Abong to PAS in the Bakri constituency.

This phenomenon of the Johor Malays voting against Umno appeared to also happen in the Johor/Malacca border areas as Umno also lost the Maharani seat to PAS while votes against Umno in the Muar parliamentary constituency also increased substantially.

Most of all, it must not be denied that the MCA’s constraints in speaking up openly on certain issues affecting the Chinese community also cost the MCA dearly.

The Chinese no doubt had wanted the MCA to stand up to Umno on the keris incident, its warning given to the MCA for saying we are a secular state and issues like freedom of religion, erection of places of worship and education, but the party was prevented by the spirit of Barisan rather than lack of courage. For the MCA to do that in the pre-election period when Umno was hugely dominant would mean they had to leave Barisan, which would be more detrimental to the interests of the Chinese.

It now appears that this closed-door and quiet diplomacy with Umno on sensitive issues started by past MCA leaderships is no longer an option. If in these four years, the DAP can prove to be an effective voice for the Chinese, the MCA may very well become irrelevant. Therefore, the last thing the party should face now is internal bickering. United, they can still dong shan zai qi (make a comeback).

All in all, it is time for the Barisan component parties to work even closer together. The spirit of cooperation should not just be there during election time.

One urgent area is for Barisan state governments to expedite land and building plan approvals for non-Muslims’ places of worship. Such approval often take a long time, if not years to come.

And if the Barisan is not able to eradicate corruption and poverty regardless of race, it may just be wiped out by the Opposition in the next election if people living in the Opposition states are experiencing less corruption and better rights and quality of life.

In a way, it is good competition but only in the next election can one finally conclude whether a two-party system has emerged, that is, provided the Malay votes do not swing back to Umno.

All in all, politicians must be able to feel the pulse of the nation before the ground moves, let alone shake.

As an American writer, Simeon Strunsky, once wrote: “People who want to understand democracy should spend less time in the library with Aristotle and more time on the buses and in the subway.”

Café Latte Chat: Shrinking Chinese votes

The Sunday Star

The Café Latte Chat is a regular series that aims to stimulate discussion and opinion on current issues. It begins this week with the spotlight on Chinese votes in the context of the next general election.

IN his preamble, The Star's acting group chief editor Datuk Wong Chun Wai pointed out that power sharing in this country has been a numbers game. The Chinese now comprise only 25% of the total population compared to some 35% a decade ago. Only about 30 of the 219 parliamentary seats are still predominantly Chinese.

What are the possible impact and implications of the shrinking Chinese votes on the power-sharing model? Can the community afford a weaker representation in the ruling Barisan Nasional?

Healthy debate: The panel including (from left) Liew, Soong, Khoo, Wong and Roger airing their views during the first Cafe Latte Chat at Menara Star recently.

How can the Chinese community rediscover their political influence in the governance process?

Are the grouses and sentiments real and legitimate?

What is the way forward?

The participants in this session are corporate lawyer Roger Tan, Insap research director Fui K. Soong, DAP election strategy advisor Liew Chin Tong, Sedar Institute director Gavin Khoo Khay Peng and The Star's associate editor Joceline Tan.

Below are excerpts from the discussion chaired by Wong.

Urban And Restless

Wong: Let's start with the perception that urban voters especially the Chinese are in an anti-establishment mood.

Joceline: There is clearly unhappiness mainly among the intelligentsia, people who read newspapers, watch TV, (and) follow current events about a variety of issues. They are also mainly urban-based and middle class so areas like the Klang Valley and also Penang would be areas to watch. But sometimes as a reporter, I get the sense that when people tell me something, like the Chinese are unhappy, I tell someone else, and he or she tells others and after a week, it comes back to me. So you wonder how much is hearsay and how much is real. We don't have a polling system to provide us with more scientific feedback.

Soong: Much like marketing, understanding voters, how they behave – these are all behavioural patterns. They are important factors for all political parties including the MCA. But talking about communal politics, this is where a lot of people fail to understand the issue of ethnicity. The West is beginning to reject this issue in politics. But we can't run away from the issue of multi-ethnicity in Malaysia.

Where Malays are concerned, religion is one line that you don't touch. For the Chinese, it's language. In Sabah and Sarawak, when we talk about the indigenous groups, we do not refer to them just as Bumiputra because for them it's about tribal identity. But from our studies we find we can't take away how Malaysians view themselves in terms of ethnicity. But they are proud of being Malaysians and, as I always say, traffic lights don't just break down just for the Chinese or if the drains are stuck, it affects everyone.

Liew: As of April 15, there were four million Malays still unregistered as voters. For now, the Government can still segregate urban and rural votes on the assumption that urban areas are still Chinese dominated and that most Malays vote in their kampung. But DAP would not only have to appeal to the Chinese if the four million urban Malays were to enter the electoral roll. Maybe it can transform itself into a party that champions all urban Malaysians. Umno's Malay hegemony is because it controls most of the seats in the rural areas. Once you have Malays who live and work in urban areas, the issues will change; the articulation of ideas would be different.

Pendulum Votes

Wong: What are your views on the urban Chinese vote swing in the next elections?

Liew: There is a large number of swing voters in urban politics, even in Australia and the United States. In Malaysia, maybe DAP will get more votes this time around, but not necessarily more seats. I don't think we will win many more seats in the next election because of the way the electoral system structures the seats. Besides, there aren’t many urban seats available. From what we hear, we may get an increase in popular votes but it would not be as great as in 1986. But even in 1990, the dynamics were different: there were hopes for a change of government, at least for a majority of Chinese. You don't see it this time around because Umno is so strong.

Roger: A Chinese vote swing in favour of DAP would be quite a disaster for the community's representation in government where the MCA is concerned. The Chinese in the rural and urban areas have a different way of thinking. They are still inclined towards the MCA because the majority are grateful for the new villages created during the Emergency.

The MCA grassroots and connectivity are stronger when dealing with rural Chinese who generally still think along Chinese representation.

This is not the case in the urban areas where issues and educational backgrounds are different. They think in terms of national interest, national issues and also the importance of a strong opposition. So we see a lot of Chinese turning towards the DAP and other opposition parties.

But when you talk about shrinking Chinese votes and representation in the government, the Chinese-based parties should unite.

This may be a near impossibility, but there was talk of MCA and Gerakan getting together in the last elections. I thought that was a good idea.

Soong: Once in a while – I don't know why – the Chinese community has this self-destruct mechanism. But the machinery, the infrastructure, is there whenever there are issues in rural areas. In urban areas, however, I believe MCA has not handled urban issues or maybe even urban Chinese issues in a way that meets their needs, which are very different. Their outreach, particularly to the professional groups, has been difficult because of the economic advances. There has to be more direct involvement with the population, to make them see that the very same economic advances were possible because of the stability provided by the Barisan framework.

Wong: When people have a problem they go to (Datuk) Michael Chong but some feel MCA is not “shouting” enough and they use DAP for that. They want the best of both worlds, so they vote DAP for Parliament and Barisan for state. Is this a Chinese dilemma?

Soong: If everyone thought that way, it would be koyak (finish) for us. I mean it's a selfish thought because it's as if they are saying they are interested only in the progress of their kawasan while hoping that others would vote the opposition into parliament for a voice.

Khoo: We have to look at the psyche of political parties. Gerakan, for example, has the same rhetoric chant as MCA – it does not want open confrontation. It keeps saying that we do things quietly; we serve the society and community in our own way by cooperating with the government. They believe in closed-door negotiations.

About the inability to connect with urban voters, it's not so much about urban or rural voters but more of the generation gap, the inability to connect with the new generation of Chinese Malaysians. Failure to integrate comes from two main reasons. One is that race-based political parties are still working at the post independence mindset. At that time, it was necessary for race-based parties to be formed.

These political parties fail to realise that there must be an evolutionary process. There should be a timeframe to work together and integrate so that a real Malaysian political party can emerge. The second reason is that political parties claim to represent certain communities by their names and, for that matter, Gerakan has also become very “Chinese-centric” because of this.

Roger: I would equate the relationship of MCA, Umno and MIC as a marriage of 50 years. So imagine that in this married situation, if Umno and MCA continued to shout at each other, the marriage would be broken. But there are a lot of Chinese who would love MCA to be more vocal and raise issues in a more open way so that MCA is seen as a party that will not be bullied.

But once we do that, we are going to have a reaction. If you look at our 50-year history, there have been instances where MCA has spoken up and each time, there was strong reaction from Umno.

Chinese Votes Crucial In Malay Areas

Wong: When the Chinese supported the opposition in 1969, there was a loss of representation in government. They know they can never be “king” but they can be the king-maker in close-fought seats. Given the shrinking Chinese population, would that mean they would face less and less political clout?

Liew: I prefer the analogy of the 1990 election when the majority of Chinese voted opposition and this prompted the government to announce Vision 2020 four months after the elections. It was the recipe to address Chinese discontent and because they knew the Malay ground was very weak at that time. The Chinese were the king-maker in 1990, so they decided to sustain their support by addressing the issues.

MCA will not face serious consequences in the next elections because half of their seats are Malay-majority and Umno is relatively strong at the moment. In addition, many urban voters face a dilemma in the sense that services and amenities are linked to patronage. Many Chinese Malaysians feel it's their right.

Soong: About 65% of Umno seats are multi-racial seats. When the candidate or constituency is dicey, the Chinese tend to vote for the opposition. They are leveraging against each other.

Roger: From my observation, if Umno and PAS vie for a seat, the Chinese would vote for Umno. As for those seats that are for MCA and DAP, the Malays go for MCA. So it's not quite correct to say that MCA relies on Malay votes in order to survive. The Chinese were the king-maker when there was trouble in Umno in 1999.

Wong: In a contest between two Chinese parties, how would the DAP win the Malay vote?

Liew: The press is restricted and DAP has no free access to mainstream media. It is difficult for the opposition to preach the national message. For the Malays, DAP is a Chinese chauvinist party. For the Chinese, PAS is given the same view. There's no chance for DAP to make a national conciliatory step. We are forced to go on the ground and that's challenging.

In addition, the electoral system is structured in such a way that it gives Barisan the advantage. As such PAS has won in purely Malay seats and DAP, unfortunately, has also won only in purely Chinese seats.

Khoo: It's simplistic to think that anyone can just form political parties to replace MCA, Gerakan or even DAP because history has shown that parties such as Parti Negara and Pekemas have not achieved any effect. The multi-racial system is inevitably what our system must include and there must be evolution.

We cannot just base it on the post-independence model and say we are going to use it for the next 50 years. If the dominant party tells you we will still be using the same model in 2057, then something is wrong. That's why I think it's very pertinent for political parties within the system to see what they can do to influence the dominant partner to change the system.

Roger: But in the urban areas, the Malays would still vote for Umno simply because Umno is seen as the protector of Malay rights and the Constitution. Also, many Malays vote for them out of gratitude for what they have done.

Urban Voice

Liew: About half of the Malay electorate voted PAS and Keadilan in 1990, so for Malays not to vote for Umno is possible. But Abdullah is still very strong and seen as a champion of the Malays. Things might change in the years ahead because we may no longer assume that Chinese are urban and Malays are rural, as more Malays move to urban areas.

The current administration has not addressed this issue and the disappointment will show in the next election. But there is no way Umno will change unless and until they have to face the swing voters in urban areas. When it has to face younger Malays who have different ideas about the world, then it would have to adapt.

Joceline: The critical group in the next elections would be the urban voters, a large proportion of them being Chinese. Their access to information, the media and the Internet shapes their worldview about politics, democracy, or what is due to them. They see things differently from those outside the urban centres.

Any party that serves this urban grouping will have to come around to their way of thinking and to address the issues. Even Umno will face a similar situation as urban Malays grow in size. They can still raise the keris and it works for the rural crowd but they'll have to start rethinking the urban vote because there's going to be a critical mass of urban voters.

Khoo: Many issues cut across racial lines in urban areas. The government focuses too much on politics, too little on governance. People want this to be addressed – imbalances, abuses, corruption and poor public delivery system. They're also concerned about the inability of the government to control economic opportunities, which lead to escalating costs. When high prices hit the Chinese, it also hits the Malays and Indians.

In his concluding remarks, Wong said: “There seems to be several streams of thought here. We agree the Chinese community is shrinking and some of us are concerned the community will lose political clout if the trend continues.

“But others take comfort that as the political sphere changes, especially in urban areas, the Chinese voters – as a minority – would remain a key factor. The urban voters, it has also been pointed out, also share many commonalities regardless of their ethnic background. Malaysians would be able to see a clearer perspective of this in the next general election. –Transcribed by PAUL CHOO and M. KRISHNAMOORTHY