The Evil That Men Do 1

The history of the world is a history of conflict. Marx conceived this conflict as a ‘class struggle’. The struggle for the emancipation of the workers – the struggle towards an egalitarian society. Marx looked up law as an instrument of class oppression, it functioned to bolster the position of the capitalist and keep in check class antagonisms. Whilst there is some measure of truth in what Marx says, I do not think that even Marx could have rationalised the wholly irrational world that has come into being over the past 50 or so years.  Today, we live in a world defined by conflict and limited by ignorance.

A CONFLICTED WORLD

Recent events around the world have prompted me to reexamine the question – what is law? Does the liberal claim that law is a purposive activity have any merit, and if so, what exists in countries where the law is not purposive but is used as an instrument of tyranny. There is always the status quo and that is juxtaposed against forces that what to change the system.

Some of the major conflicts around the world today are:

1. Sri Lankan civil war
2. War in Afghanistan
3. Iraq war
4. War in Darfur
5. War in Somalia
6. Conflict in Burma
7. Arab-Israeli conflict
8. Armed conflict in Colombia
9. Communist and Islamic insurgency in the Philippines
10. Internal conflict in Peru
11. Turkey-PKK conflict
12. Somali civil war
13. Kashmir conflict (India/Pakistan)
14. Casamance conflict (Senegal)
15. Conflict in the Niger Delta (Nigeria)
16. Ethnic conflict in Nagaland (India)
17. Insurgency in Oganden (Ethiopia)
18. Kivu conflict (Congo)
19. Chechen War (Russia)
20. Insurgency in the Maghreb (Algeria, Mauritania & Morocco)
21. Balochistan conflict (Pakistan)
22. Sa’dah insurgency (Yemen)
23. South Thailand insurgency
24. War in Chad
25. Mount Elgon insurgency (Kenya)
26. Fatah-Hamas conflict
27. Tuareg rebellion (Mali)

All of these conflicts cannot be examined by reference to any one juristic tradition. Their causes are manifold and the political and ideological backdrop ever changing. So what is law and can it exist in these circumstances? And can there be a duty to obey law in such conflicted systems and if so, what is legal obligation.

INTERNATIONAL LAW?

In International Law there seems be little problem in trying people for large scale genocide under the broad umbrella of ‘crimes against humanity’. In 2002, the International Criminal Court (ICC) was established in The Hague. The Rome Statute provides for the ICC to have jurisdiction over genocide, crimes against humanity and war crimes. The definition of what is a “crime against humanity” is stated in Article 7 of the treaty as follows:

“Crime against humanity” means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: (a) Murder;(b) Extermination;(c) Enslavement; (d) Deportation or forcible transfer of population; (e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law;(f) Torture; (g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity; (h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court; (i) Enforced disappearance of persons; (j) The crime of apartheid; (k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.

This is further explained in the Rome Statute Explanatory Memorandum which states that crimes against humanity are particularly odious offences in that they constitute a serious attack on human dignity or grave humiliation or a degradation of one or more human beings. They are not isolated or sporadic events, but are part either of a government policy (although the perpetrators need not identify themselves with this policy) or of a wide practice of atrocities tolerated or condoned by a government or a de facto authority. However, murder, extermination, torture, rape, political, racial, or religious persecution and other inhumane acts reach the threshold of crimes against humanity only if they are part of a widespread or systematic practice. Isolated inhumane acts of this nature may constitute grave infringements of human rights, or depending on the circumstances, war crimes, but may fall short of meriting the stigma attaching to the category of crimes under discussion. On the other hand, an individual may be guilty of crimes against humanity even if he perpetrates one or two of the offences mentioned above, or engages in one such offence against only a few civilians, provided those offences are part of a consistent pattern of misbehavior by a number of persons linked to that offender (for example, because they engage in armed action on the same side or because they are parties to a common plan or for any similar reason.) Consequently when one or more individuals are not accused of planning or carrying out a policy of inhumanity, but simply of perpetrating specific atrocities or vicious acts, in order to determine whether the necessary threshold is met one should use the following test: one ought to look at these atrocities or acts in their context and verify whether they may be regarded as part of an overall policy or a consistent pattern of an inhumanity, or whether they instead constitute isolated or sporadic acts of cruelty and wickedness.

The problem with this is that it presupposes some broad juristic principle calling for the preservation of humanity. This then is based on some preconceived idea of what the ‘legal obligation’ to preserve ‘humanity’ consists of. I for one am unconvinced. Please do not misunderstand my position – clearly there are many individuals who have perpetrated untold tortures and genocide against defenseless people who are richly deserving of condemnation. The problem I have with this is this – invariably all those individuals who are brought to trial are deposed and powerless at the time of their trial -

Some of the former heads of state and heads of government in that category who have been charged include:

• President of Nazi Germany Karl Dönitz and Prime Minister Hideki Tojo of the Empire of Japan in the aftermath of World War II.
• Former Yugoslav President Slobodan Milošević was brought to trial for war crimes and genocide, but died in custody on March 11, 2006, before the trial could be concluded.
• Saddam Hussein, who was sentenced to death for the atrocities he committed against the Iraqi people during his tenure as President.
• Radovan Karadzic, the former Bosnian Serb leader.
• Former Liberian President Charles G. Taylor was also brought to the Hague charged with war crimes; his trial was provisionally scheduled to begin in April 2007, but was postponed until June 2007 to allow the defense more time to prepare, and is now ongoing.

The jurisprudence in all this:

POSITIVISM

The position of many modern day lawyers mirrors the views expressed by the English positivists of the 19th century. The English jurist John Austin famously said, ‘ The most pernicious laws and therefore those which are most opposed to the will of God, have been and are continually enforced as laws by judicial tribunals ……. An exception, demurrer, or plea, founded on the law of God was never heard in a Court of Justice’.

On this view, law is an instrument of political power and it reflects whatever political base exists in a country. Accordingly, when a system loses its political efficacy, it ceases to have any validity and the new system is valid. This means that the people who now have the POWER will call the shots and in my view the many prosecutions for crimes against humanity is an illustration of this fact, rather than any claim based on fairness or morality. The whole idea that ‘justice’ is being served by the work of the ICC is an oversimplification of the forces at work.

A crime against humanity” occurs when there is a widespread or systematic attack directed against any civilian population – isn’t that what happened when the United States and their allies invaded Iraq. When the Soviet Union invaded Afghanistan and more recently when Russia invaded Georgia. When China invaded Tibet. We see this again and again around the world. The United States, the most powerful country in the world and ideologically the most democratic is guilty of many crimes against humanity, the manner in which prisoners are treated in Guantanamo are particularly odious offences in that they constitute a serious attack on human dignity, grave humiliation and degradation of all the human beings held there. The ultimate defense is that they are engaged in a war against terror. What about the terror that they have caused in the world against millions of innocent civilians? Does the death of 3,000 Americans on September 11 in New York justify the actions taken in retaliation for it.

CLEARY WHAT THIS REPRESENTS IS NOT THAT RIGHT IS MIGHT, BUT RATHER THAT MIGHT IS RIGHT. This is essentially the positivist mantra.

Yet justice more than any other concept has been the most closely associated with law. Positivism holds that law and justice sometimes can and is a paradoxical dichotomy.

(TO BE CONTINUED)

The Undiscovered Country 3 (continuation)

My early upbringing as a Hindu made me think hard about the ‘truth’ in the karma theory. My mother was a very religious woman and was indoctrinated with a ritualistic and dogmatic view of Hinduism, which she sought to indoctrinate me with. Until about 15, I tried to see things her way but the practice of Hinduism, particularly the ritualistic elements, drove me to seek an answer elsewhere. I mean no disrespect to the Hindu people but I just cannot accept this view of God.

THE MYSTERIOUS GOD

I wish to classify all religions that explain God by virtue of partial explanations – religions of the mysterious God. I shall use for the purposes of exposition a hypothetical religion, I shall call – Mysteryism. In mysteryism God is hidden from normal epistemology. The universe is divided into two spheres of good and evil and God is the protector of the “good”. Doing “good” is an essential part of finding a way to God and what is “good” is dictated by God. God chooses a few messengers and over time communicates this “good” to the entire human race through these messengers – the chosen ones. There is a complete mystery about how and why these individuals have been chosen and no coherent connection between the various individuals. These messengers spread a message that portrays God in a contradictory way. First an image of God as a kind, benevolent, loving and forgiving God. A God that teaches us to love our enemies and forgive those you trespass and sin against us. This is juxtaposed to the image of a God who merciless tormentor of sinners – the punishment for not following his commands is eternal damnation. The doctrine would assert something like, “Unbelievers, the fearful, liars, sexually immoral people and many others will be cast into the Lake of Fire…. the cowardly, unbelieving, abominable, murderers, sexually immoral, sorcerers, idolaters, and all liars shall have their part in the lake which burns with fire and brimstone, which is the second death.” Not a very pretty picture.

BUT there is a saving grace normally, even right at the very end, if you repent you shall be forgiven and all is well.

The problem with this is that normally the requirement is that you should embrace the religion of Mysterysim and accept all its central tenets as a pre-condition to being forgiven. Mysteryism would assert that all people who have been in one or more of the above mentioned categories of “bad” at sometime in their lifetime, can repent of all these things, and be washed clean by God. “God will wash us clean if we turn from it, and believe. He will wash us many times while we are learning to overcome sin”.

So I have this mental image of a good man living in a place, where the people have never heard of Mysteryism. The man is humble and spends all his life in the service of his family and the villagers. He has never embraced Mysteryism because he has never heard of it, or even if he has heard of it, he is not convinced enough to abandon his own belief system, which has a multigenerational foundation and which he has inherited.

Now he dies and because he does not embrace Mysteryism as his faith, he is unbelieving and therefore shares the same berth as murderers, sexually immoral, sorcerers, idolaters, and all liars, and therefore is condemned to burn in fire and brimstone for eternity.

By contrast, you now have a cowardly, unbelieving, abominable, murderer who is sexually immoral and rapes and kills children. This man right at the end repents and embraces with full faith Mysteryism – he is spared this condemnation and is welcomed by God, who forgives him.

There is something seriously wrong with this – don’t you think! God is a schizophrenic. Furthermore, shouldn’t a loving God just give the sinners a good, stern, talking to and say something to the effect of “I love you in spite of your sins” and then send them to his Kingdom? What is the need for eternal inferno if God is supposed to be loving? No truly loving God would create a place of eternal torment such as Hell. There are all sorts of rationalizations such as “God allows us to choose because He loves us” and “a loving Parent sometimes has to punish,” but these don’t hold up to rational examination. But therein lies the mystery – only God knows the answer.

“Where is God in all this suffering?” – Nicodemus

The Politics of Myopia 2 (Continuation)

Equality

The principle of equality, as I said before is enshrined in our Constitution. But what does the principle involve? The philosophical concept of equality is controversial and contested. Equality is not necessarily fairness. We live in a world of great inequality and clearly one of the primary functions of law in a society is to redress this inequality.

Harry Blackmun put it succinctly, “In order to get beyond racism, we must first take account of race. There is no other way. And in order to treat some persons equally, we must treat them differently”. In this context, the New Economic Policy and other plans of affirmative action is certainly desirable to reconstruct the structure of society. The unique feature of the NEP is that it is racially driven. The failure of this model is that while, the beneficiaries of such affirmative action will have an opportunity to participate in the mainstream of society, signaling the end of the ‘Malay Dilemma’, other neglected classes will be disenfranchised and become a ‘New Dilemma’ for society. The HINDRAF rallies proved this amply. Today, many Malaysians of Indian origin are so disenfranchised, that they have became removed from the mainstream of Malaysian society. This represents a very serious problem in the realization of a just and equitable civil society. But that’s only part of the problem, the ‘Malay Dilemma’ has not been completely resolved. The NEP has seen Malays have a greater stake in the economy, but that is only qualitatively, NOT quantitatively. It represents a lot of wealth in the hands of a few – a new kind of Malay aristocracy has been created. The rise of a formidable opposition and the continued support for Anwar Ibrahim and PAS is clear evidence of this. If the Malays are not united as many politicians claim, it is because many of them perceive and recognize the failure of the NEP in creating a more egalitarian Malay community.

The Bogus Clarion Call

“The Malays must be united or they will be threatened by other races and lose their special rights” - this is the kind of rhetoric used by Malay politicians to garner support for themselves. The problem with this is that it is factually wrong and intellectually stunted. The Countess of Blessington once remarked, “Prejudices are the chains forged by ignorance to keep men apart”.

This is so true in the present scenario. I do not for one moment think that any particular race group is a threat to another in our country. Malaysians are by and large not racists. We have been living together for hundreds of years NOT only since independence. As Martin Luther King Jr. said, “I refuse to accept the view that mankind is so tragically bound to the starless midnight of racism and war that the bright daybreak of peace and brotherhood can never become a reality”. Malaysians have enjoyed such a brotherhood for many years. It is not a perfect brotherhood but one in which, like members within a family, there has been considerable give and take. We share a common destiny, many non Malays are also non Chinese and non Indians. They have been so far removed from their historical roots that they are no longer really Chinese or Indian. All of the present generation of non Malays are born and bred Malaysians. This divide between Malays and non Malays is really arbitrary, the reality is that we live very similar lives and are confronted by very similar problems.

Our constitutional reality is best expressed in the words of Sara Harrington, who said, “While the legal, material, and even superficial requirements to eradicate racism are well known, its psychological and more deeply spiritual requirements have been persistently neglected-namely, the oneness of the human family. It is this principle of oneness that needs to be the driving force behind the struggle of uniting the races.”

We have to make real this common destiny and understand that, “The good we secure for ourselves is precarious and uncertain until it is secured for all of us and incorporated into our common life” – Jane Addams.

Politics of Myopia

This past week has seen several incidents that seem to indicate to me that after more than 50 years of independence, our nation is still perched on the dangerous cliff called ‘racism’. Our moral integrity as human beings hanging on for dear life, as the political forces of myopia diligently plot our fall.

Selangor Menteri Besar Tan Sri Khalid Ibrahim’s suggestion for UiTM to open up 10% of its intake to other races was met with a generally hostile response since the move was seen as challenging the special rights of the Malays. The general argument is that if UITM opened its doors this would lead to a situation where many Malay institutions will disintegrate. This would lead to the special rights of Malays being eroded.

Racism has been a part of our culture since the country’s inception. It’s very much an open secret. The secret part of it is largely due to the provisions of the Sedition Act which make it an offence to incite or inflame racial sentiments. Yet over the past one week, I have heard prominent Malay politicians say things like, “Don’t push the envelope with the Malays or be prepared to face the consequences – you don’t know what’s coming”. “Don’t challenge the Malays.”

I think I have been living in a fantasy world (but I am convinced I am not alone). I don’t and never have thought of my friends by reference to their racial denomination. A Malay, a Chinese, an Indian, etc. They are my friends, Ahmad, Peter and Samy. I have never attached any special significance to their race because it really does not matter. People are good or bad, or sometimes a bit of both. Race does not prequalify a person to any special claim or right in relation to character, integrity or virtue. In my mind the average Malaysian does not think about race either. Most people are thinking about how to improve their conditions of living and surviving mostly, in what is a grossly inequitable world.

Embracing cultural diversity, with tolerance, respect and understanding should be the fundamental principle of any nation that aspires towards greatness. These laudable principles would probably be applauded by many but the question is how do we deal with this complex, emotive and at times, divisive ethos without causing further conflict or merely treating it in a superficial manner? My main concern is that we must deal with our multiculturalism in a manner which avoids tokenism.

This is the course that the Malaysian leadership has embraced over the past 40 years. At least in my living memory. A path of tokenism.

For Malaysia to be truly Asia (as the song goes) our society must embrace multiculturalism wholeheartedly as something that strengthens us not the contrary. It requires a tolerance of difference and a pluralistic view of culture. For these attributes to be part of a society’s psyche there must first exist empathy and a willingness to examine one’s own perspectives in the light of alternate perspectives. Our education system lies at the heart of this process.

Educators are in a unique position to foster and facilitate those personal characteristics necessary to accept change open-mindedly and with a willingness to incorporate the aspirations of all for the wellbeing of all. This sort of attitude to life is one which must evolve. It requires a particular approach to life and learning – a sincere and courageous quest for truth and meaning in all facets of one’s learning. A pluralistic view of life can only be gained through a desire to understand and respect the experiences of others, and this can only be achieved effectively when it is incorporated automatically into one’s reflections about life.

It is shameful when the very education system and educators who should be promoting critical thinking and open mindedness, skew the system to achieve very short term and myopic political aims.

Racism as a social toxin, the origin of which can only be found by delving deeply into the social unconscious. Differences of opinion on the complex issues of religion, law, morality and customs will always exist between varying cultures. We have to be respectful of each other and develop a sense of conviction that we have a common history and a common destiny. We must believe in the power inherent within us to remove some of the barriers and render those that remain more transparent, thus providing a glimpse into the thoughts and feelings of those who live on the other side. There is no antidote to the toxin but we could help pave the way for an increase in tolerance and an enrichment of our lives, gained through an everwidening range of possibilities from which to choose when determining our beliefs, codes of behaviour, and our direction as a society.

“Affirmative action” means positive steps taken to increase the representation of Malays in areas of employment, education, and business because they have been historically disadvantaged. In my view this is both necessary and desirable to create social equilibrium. Nothing will endanger our society more greatly than our unwillingness or inability to provide opportunities for people who are socially disadvantaged.

This is different from saying that because I come from a particular race group, I am entitled to certain rights even though I don’t need such preferential treatment. Such an assertion will make a sham of the fundamental principle of equality enshrined in Art. 8 (1) of our federal constitution. The principle of equality is the most fundamental of human rights and has been described as the “starting point of all liberties”. International human rights law reflects this belief. Art.3 of the Universal Declaration of Human Rights, 1948 (UDHR) declares that all human beings are born free and equal in dignity and rights. The UDHR is not a treaty but it embodies a moral authority and sets out a common standard of achievement of all peoples and nations. The UDHR is the root document from which the international human rights treaties have grown.

(TO BE CONTINUED)

I WROTE THIS ON THE 4TH OF SEPTEMBER 2004 – THE STAR ONLINE

THERE is never a wrong time to stand up for the right thing. I wish to express my admiration for the learned judges who preferred to err on the side of caution and to free Datuk Seri Anwar Ibrahim.

I have taught legal philosophy to many students over the last 20 years. In recent years it has become a purely academic exercise for me. It is when practice meets principle that the legal system begins to come alive and be real to the man in the street. Since Anwar’s conviction, it became impossible to defend some of these principles – the most cardinal of which is the “presumption of innocence.” Many reconciled the position and earlier decisions on the basis of political reality and expediency – I could not.

I have always been of the belief that the law provides an independent test of guilt or innocence – it is not based on truth (since often, the truth is pliable), it is based on evidence. This is the principle upheld by the Federal Court in Anwar’s case. When I read of Anwar’s acquittal yesterday, I found myself believing in the legal system once again.

The rule of law requires the subjection of every individual within the legal system to the same rules of evidence, the same burden of proof – the drug pusher, the murderer, the snatch thief, the sodomist and anyone else accused of a crime. I do not know whether Anwar committed the crime of which he stood accused, but in my mind the allegations were not proven “beyond a reasonable doubt.” That is the standard we set in a court of law, or else, anyone can be imprisoned purely on belief, speculation and conjecture.

The legal system is not judged on the hundreds and thousands of cases justly and fairly tried but on those occasions when it falters. It is okay to falter, provided we have the courage to pick ourselves up and put it right.

The great American judge Learned Hand said half a century ago in Central Park, New York: “Liberty … lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it. While it lies there, it needs no constitution, no law, no court to save it.”

Another great English judge, Lord Lester of Herne Hill, said: “It is so easy to destroy the ancient trees of liberty; so difficult to replace them once they have been cut down.”

Today, we have shown the world that liberty is alive and well in Malaysia. God bless Malaysia.

I AM AFRAID THESE SENTIMENTS ARE IN SERIOUS DANGER OF BECOMING OBSOLETE GIVEN THE CURRENT REVISITATION OF THE SAME INJUSTICE AGAINST ANWAR.

Back to Square One – Revisiting Squalor

Just when I thought our country would undergo transformational change politically, it looks like its time to ‘wag the dog’ again! This morning Anwar Ibrahim is being charged with sodomy again. This is inspite of the fact that similar unsubstantiated charges filed 10 years ago against him were overturned by the Supreme Court of Malaysia.

The initial conviction itself was in my opinion unsafe by any juristic standard. Suffice to say no prosecution should be allowed to ammend a charge several times, especially when it relates to the time and place where offence is alleged to have taken place. To compound matters, the victim denied ever being sodomized.

Today many world leaders have expressed concern over the path our country has taken. For me, this is not as important as the fact that a majority of Malaysians feel Anwar has been framed.

THE RULE OF LAW

The prosecution will argue that regardless of the sentiments expressed by the public, the legal process is not about public opinion or popularity. The rule of law demands that everyone be subject to the law regardless of position or rank. As Thomas Fuller said more than 300 years ago, “Be you never so high, the law is above you.”

The idea of the rule of law is seriously contradicted by the idea that the Attorney General has an unfettered descretion on which cases to prosecute and which cases not to. It is important to understand that although the power may seem arbitrary, it is conditioned by public opinion, juristic and ethical considerations. Any AG who disregards these considerations is perpetrating tyranny and injustice.

All criminal prosecutions are brought in the public interest. Laws are made and enforced to uphold the public good and the criminal legal system is an integral part of that process. When the criminal justice system is hijacked to promote a political agenda – the system begins to decay. It loses its moral authority and people lose faith in the legal system.

This Government has shown a willingness to address decades of erosion of public confidence in the legal system by addressing the critical questions of (1) Judicial integrity and (2) corruption within the legal system. Now, after taking one step forward, we are about to take many steps backwards, regressing to the ‘Mahathirian Era’.

I fully concur with the views expressed by John Berthelsen from Asia Sentinel, who wrote,

“Mahathir Mohammad, the long-serving prime minister who quit in 2002, had a single ambition – to reach developed-nation status by 2020. But you cannot be a first-world country with a legal system whose main characteristics are shared by the likes of Zimbabwe , Burma and North Korea . Mahathir, of course, bears a major part of the blame for the legal system, starting from his destruction of the judiciary in the 1980s. But what is going on now, six years after he was succeeded by Abdullah Ahmad Badawi, is nothing more than the United Malays National Organisation’s manipulation of the system a la Robert Mugabe in Zimbabwe . This has nothing to do with ideology but with the dubious necessity of maintaining a political party in power.”

THE CASE AGAINST ANWAR – THUS FAR

The last time around, it was wafer thin. Let us examine whether things have improved this time around:

1. Alibi – derived from the latin language, it means to be somewhere else. A person who can prove he has an alibi proves that he was in another place when the alleged crime was committed. A valid alibi is an absolute defence, until someone invents a machine that allows a person to be at two places at the same time. Since Anwar has provided the police with an alibi, the first issue is to examine why they have rejected his alibi.

2. There are statements that Anwars semen was found on the victim’s underwear. This is very strong evidence, if true. But evidence of what? Evidence that there was some kind of sexual interaction ranging from masturbation to sexual intercourse. But sodomy would require proof of penetration – unnatural sex. Merely finding semen stains on underwear is not proof beyond a reasonable doubt of sexual intercourse. The fact that Anwar was imprisoned so many years and that the police already have his DNA samples, makes this type of forensic evidence quite unreliable and open to allegations of a ‘frame up’.

THE DECISION TO PROSECUTE

The decision whether or not to prosecute is very important. Great care must be taken in the interests of the victim, the suspected offender and the community at large to ensure that the right decision is made. A wrong decision will seriously undermine the confidence of the community in the criminal justice system.

An initial consideration is whether the evidence is sufficient to justify the institution or continuation of a prosecution. A prosecution should not be instituted unless there is admissible, substantial and reliable evidence that the oofence has been committed. When deciding whether the evidence is sufficient to justify the institution of a prosecution the existence of a bare prima facie case is not enough.

Once it is established that there is a prima facie case it is then necessary to give consideration to the prospects of conviction. A prosecution should not proceed if there is no reasonable prospect of a conviction being secured.

THE COURT OF PUBLIC OPINION

Public opinion is very important factor in any healthy democracy. The Court of public opinion helps society make a better judgements about their government and the shape of their civil society. Negative public opinion in any matter is usually a good barometer of what the Government needs to fix. The strength of public opinion in Anwar’s matter makes it clear that people are fed-up with this brand of below the belt politics and are eager for a more enlightened form of politics. Where we shoot the message and not the messenger. It is important for those in positions of power to respect and abide by public opinion. Public opinion exposes our ugly deeds and bring us to account, examine and see where we stand. Respect for public opinion is the very basis of civil society.

Public opinion could also incite some into acting disorderly in society. Disorderly in such a way that could be against the norms of society, simply because they seek the revelation of the truth. I could name some of these dissidents, Mahatma Ghandi, Nelson Mandela, Tunku Abdul Rahman. All of them stood against standing governments with a view to altering the status quo. In all, God has given every man his sound mind and conscience, to think and judge wisely. So, not all judgement is right. But extract the truth out of Public opinion and at least you will be on the path of democracy.

THE BROADER PICTURE – THE PENAL CODE

The offences related to this prosecution can be found in Section 377 of the Penal Code, as follows:

377A Carnal intercourse against the order of nature.
Any person who has sexual connection with another person by the introduction of the penis into the anus or mouth of the other person is said to commit carnal intercourse against the order of nature.

377B Committing carnal intercourse against the order of nature
Whoever voluntarily commits carnal intercourse against the order of nature shall be punished with imprisonment for a term which may extend to twenty years, and shall also be liable to whipping.

377C Committing carnal intercourse against the order of nature without consent, etc
Whoever voluntarily commits carnal intercourse against the order of nature on another person without the consent, or against the will, of the other person, or by putting the other person in fear of death or hurt to the person or any other person, shall be punished with imprisonment for a term of not less than five years and not more than twenty years, and shall also be liable to whipping.

377CA Sexual connection by object
Any person who has sexual connection with another person by the introduction of any object into the vagina or anus of the other person without the other person’s consent shall be punished with imprisonment for a term which may extend to twenty years and shall also be liable to whipping. [Exception: This section does not extend to where the introduction of any object into the vagina or anus of any person is carried out for medical or law enforcement purposes.]

377D Gross Indecency
Any person who, in public or private, commits, or abets the commission of, or procures or attempts to procure the commission by any person of, any act of gross indecency with another person, shall be punished with imprisonment for a term which may extend to two years

A very good friend of mine, send me an email which proferred the following analysis which I fully concur with.

It would appear to me that by virtue of section 377B and 377D, the following would be TRUE:

(1) a husband can be jailed up to 20 years & liable to whipping if his wife performs oral sex on him. It is, however, not a crime if he performs oral sex on her.

(2) a husband can be jailed up to 20 years & liable to whipping if he has anal sex with his wife, even with her consent or blessing.

(3) a pair of consenting male homosexuals who willingly perform oral sex on, or have anal sex with, each other can both be jailed for up to 20 years and liable to whipping. It is, however, not a crime for a pair of consenting female homosexual to perform any sort of oral sex or anal sex.

By virtue of section 377D,

(1) a couple who willingly spice up their sex life in any aspect other than the ordinary missionary pose in their own bedroom could be deemed as commission of act of gross indecency and can be jailed for up to 2 years.

(2) anyone who owns/buys any sex toy could be charged for “attempts to procure the commission of act of gross indecency” with another person and can be jailed for up to 2 years.

There is no clear definition of gross indecency, even kissing in the public can be summoned to Court – there was a case few years back where a chinese couple was charged with gross indecency as they kissed in the KLCC garden.

It is time for serious law reform in the Penal Code, law’s like this ignore the social realities that are prevalent in our society. It ignores the right of individuals to regulate their own affairs without intervention in areas, where their behaviour is not harmful to others and is consensual. I fully accept that the boundary lines are difficult to draw but we must make a start somewhere if we are truly to become a developed society that is torelant and respectful of everyone. Let me share the sentiments of the Wolfenden Committee in England that recommended the decriminalization of certain types of private conduct,

“Unless a deliberate attempt is to be made by society, acting through the agency of the law, to equate the sphere of crime with that of sin, there must remain a realm of private morality and immorality which is, in brief and crude terms, not the law’s business. To say this is not to condone or encourage private immorality”.

The conduct which Anwar stands accused is practised by many people in our country UNLESS we are hypocritical enough to say there are no homosexuals or transvestites in Malaysia. Should they all be going to jail for six years.

The fundamental question is this, how does that affect an individuals ability to govern the country. I am not for one moment suggesting that Anwar is guilty of the offence for which he stands accused – all I am saying is that it is irrelevant.

DROP IT

If indeed Saiful was sodomized, what was the neccessity to meet with the DPM and all manner of people before acting on it. He should have just gone to a police station on the very day he was sodomized and made a report.

This much is clear – the report and the accusations were orchestrated to achieve the best political mileage posibble and to stop Anwar in his tracks.

The Undiscovered Country – Continued – Part 2

Our mind is the undiscovered country because therein lies many answers. I believe that if we examined our own life closely, self reflection will yield many of the answers we are looking for.

One of the questions I ask often is, is there any significance for life in a Universe of billions of stars that ignore us? Is there any significance for life in a Universe whose dimensions and nature overcome our understanding?

Let me share with you the words of Pascal, in the 17th century:

“When I consider the short duration of my life, swallowed up in the eternity that lies before and after it, when I consider the little space I fill and I see, engulfed in the infinite immensity of spaces of which I am ignorant, and which know me not, I rest frightened, and astonished, for there is no reason why I should be here rather than there. Why now rather than then? Who has put me here? By whose order and direction have this place and time have been ascribed to me?”

Many people have reasoned and found their answer to be God. That God intended us to be this or that. A central player in this enquiry therefore is GOD.

GOD?

The French philosopher, André Comte-Sponville, wrote,

“Why is there something rather than nothing? We do not know. We will never know. Why? To what purpose? We do not know whether there is a purpose. But if it is true that nothing is born of nothing, the very existence of something – the world, the universe – would seem to imply that there has always been something: that being is eternal, uncreated, perhaps creator, and this is what some people call God.”

God seems to the answer to all the questions for which we have no answers. It is the solution to all our problems and the source of comfort in dealing with all of life’s inequities and frustrations. It provides an ideological premise that gives meaning and gives justification to all of life’s bullshit or as Shakespeare put it “The Heartache, and the thousand Natural shocks that flesh is heir too.” This is why we quietly accept the many hardships of life and the oppression of others passively. We tolerate the many injustices in our daily lives and “grunt and sweat under a weary life”. It is because we fear that journey to “The undiscovered country, from whose borne no Traveler returns” God is our answer to ignorance. We are puzzled and bewildered by what is to come and therefore we have decided to “bear those ills we have, then fly to others that we know not of”. God is our balm that soothes this iniquitous life.

Perhaps the earliest explanation of God comes from Hinduism. Central to the idea of God is the idea of Karma.

Karma

The philosophical explanation of karma is used in Hinduism to explain the law of moral causation. Karma is used to explain the cause of the inequality that exists among mankind? Why should one person be brought up in the lap of luxury, endowed with fine mental, moral and physical qualities, and another in absolute poverty, steeped in misery? Why should one person be a mental prodigy, and another an idiot? Why should one person be born with saintly characteristics and another with criminal tendencies? Why should some be linguistic, artistic, mathematically inclined, or musical from the very cradle? Why should others be congenitally blind, deaf, or deformed? Why should some be blessed, and others cursed from their births?

Through the law of karma, the effects of all deeds actively create past, present, and future experiences, thus making one responsible for one’s own life, and the pain and joy it brings to him/her and others. The results or ‘fruits’ of actions are called ‘karma-phala’. So there is good karma and bad karma. This karma accumulates and creates a continuum over many lifetimes. So, if you are born blind or poor, the theory of Karma will hold that this because of bad deeds performed in your past life. The idea therefore, is to purify oneself towards the attainment of God – in Buddhism this called Nirvana.

The Problem with Karma

The basic problem with Karma is that the sufferer does not know why he is suffering because the suffering is related to something he/she did in their past life. It seems a totally unfair situation when someone has to suffer without knowing why he is suffering. I have always found the flaw in Karma reasoning to be that it offends my basic conception of justice. A person should know why he/she is being punished. Punishing someone without telling them why is a form of torture. According to Karma reasoning a person has to accept his downtrodden condition because of his misdeeds in his past life.

It is common place for us to read in the news that an Earthquake has claimed 100,000 lives in China or for thousands to perish in Myanmar’s Flood. Tragedy is constantly in the news, including large-scale, ‘senseless’ disasters that snuff out the lives of thousands, such as the terrorist attacks on New York’s World Trade Center. Nor is tragedy confined to today—it wasn’t too long ago that an evil regime wiped out 6 million Jews and many others. In addition to the headline events, each of us suffers pain at one time or another—illness, headaches, accidents and death. Is the reason for all of this the misdeeds of a past life and if so, should we not at least know what those misdeeds are. The Karma theory forces us to accept all the calamities of life in an unquestioning manner, without any explanation being given, except that “You brought this onto yourself and you deserve it.” Imagine being caned in public by the headmaster without any explanation being given or being put in prison without any explanation being given. Its a bit like what happens to the prisoners at Guantanamo.

My view is simple. The Karma theory was invented by the rich and the powerful to safeguard their positions of power. They did this in collaboration with the religious institutions who were very powerful themselves, so that, the minions would accept the status quo without asking too many questions. This is why the caste system sustained in India for so many thousands of years. The caste system was developed by the Brahmins (Aryan priests) in order to maintain their superiority. Eventually, the caste system became formalized into four distinct classes in India. Beneath the four main castes is a fifth group, the “Untouchable” Caste. They literally have no caste and are called “untouchables”, or the “Dalits”, which means oppressed, downtrodden and an exploited social group. A Dalit is not considered to be part of the human society. Dalits are seen as polluting for higher caste people. If a higher caste Hindus is touched by an untouchable or even had a Dalit’s shadow across them, they consider themselves to be polluted and have to go through a rigorous series of rituals to be cleansed. Coming from a good caste means that you are more privileged. This can imply having a good education and, accordingly, a more powerful position in the society. Being born a Dalit you will be less well off because you are socially ostracized. Dalits are poor, deprived and socially backward.

Make no mistake about it, the caste system thrived because of the karma theory. The Karma theory provided the very justification that made the caste system acceptable. All this brings me back to the point about the disparities and injustices in our society and the how the Karma theory justifies and validates these disparities. The Karma theory paints a picture of God as sadistic and unjust. Why does the same creator of all creation vertically and horizontally divide and sub-divide his people in the name of caste, sub-caste and untouchables? Does God not love everyone?

“God loves each of us as if there were only one of us.” ~St. Augustine

(to be continued)

The Undiscovered Country

Today, I was just thinking what makes us tick. What is the reason for living and how is that connected with being alive. I just met a car accident last Wednesday and broke some bones in the palm of my hand. One moment’s lack of concentration and weeks of pain. It made me think how fragile life is, especially when it could have been a broken head or something worse. Please don’t misunderstand, I’ve had many accidents and every time I get close and personal with death, it makes me think.

Mind you, this wasn’t a close enough brush with death. I’ve had two of those moments in my life. The first was in 1981. I was in a motorcycle accident and survived. As my helmet hit the tarmac I heard a swoosh. I turned to see the tyre of a lorry rolling by. That could have been it for me, had it been ten seconds earlier. The second was in 1991. my doctor told me that I had cancer. It was non-hodgkin’s lymphoma. He told me I had a malignant tumour in my throat.

A lymphoma is a cancer of the lymphatic system. The lymphatic system is a part of the body’s immune system and helps filter out bacteria, viruses, and other unwanted substances. Most people don’t notice the workings of their lymphatic systems; in fact, the only time you may be aware of your lymphatic system is when the lymph nodes swell up. This often happens when a person is sick – a sign that the lymphatic system is working hard to filter harmful substances out of the body.

Non-Hodgkin’s lymphoma is a disease in which cancer cells form in a person’s lymphatic system and start to grow uncontrollably. It took months of chemotherapy and radiation treatment to cure. I thing I hated the most about the therapy was not the nausea but the constipation. It really made me miserable. I am entirely convinced that three things saved my life. Firstly, I wasn’t about to just give up – I loved my life very much. I was successful at my job, I just had a daughter and generally I was having a really good time…secondly, I had a great oncologist – Dr Tan Meng Kuan, and last but certainly not least – I loved my job. I really enjoy teaching and immediately after chemotherapy I would head for the college and start lecturing and continue to teach for the whole day. It took my mind off everything. I’m in my zone when I teach – it’s the thing I do best.

So you see, I am no stranger to confronting death. These events have made me question the meaning of life? Why are we here? Is there a God? If there is a God, what is he up to? Is religion about finding God or just manipulating the masses? Of all the world’s religions, which one is correct? Is there an afterlife? Do we just die? Or is there a spiritual journey beyond the physical one?

People have struggled for millennia to deal with these questions. Many wars have been fought over them. But as much as these questions cause people to lose their heads, both figuratively and literally, the bottom line is that these questions need to be addressed by every intelligent human being.

As the great Greek philosopher Socrates said, “The unexamined life is not worth living.”

Socrates spoke these words to the jury in the court of Athens in the year 399 BC, after he had been found guilty of heresy and sedition. Heresy, a crime that threatened the established religion, and sedition, that threatened the state. After his accusers presented their argument for the death penalty he had the opportunity to argue for an alternate punishment. He chose death over silence. He chose death because he considered the love and pursuit of wisdom was both religious and patriotic. He believed his death would be a witness to this belief. He chose to die in defense of the right of every individual to participate in independent critical thinking. Socrates believed that the purpose of human life was personal and spiritual growth. We are unable to grow toward greater understanding of our true nature unless we take time to examine and reflect upon our life. As another philosopher, Santayana, observed, “He who does not remember the past is condemned to repeat it.”

Examining our life reveals our patterns of behavior and makes us question the reasons for our actions. Deeper contemplation will yield an understanding of the subconscious conditioning, the powerful mental paradigm that runs our life. Unless we become aware of these patterns, much of our life is unconscious repetition.

The parable the Guru’s Cat by Anthony De Mello illustrates what I am saying most emphatically,

“When the guru sat down to worship each evening, the ashram cat would get in the way and distract the worshipers. So he ordered that the cat be tied during evening worship. After the guru died the cat continued to be tied during evening worship. And when the cat died, another cat was brought to the ashram so that it could be duly tied during evening worship. Centuries later learned treatises were written by the guru’s disciples on the essential role and liturgical significance of tying up a cat during worship.”

It is important for us to ask the question – what makes me tick? We all have blind spots. Sometimes when I examine a difficult problem in my life, I can’t seem to find the solution. I know something is missing in my analysis but I can’t quite see what it is. That is because none of us can see our own back side – the blind spot. Socrates’ method of self-examination included an essential element that became known as the “Socratic” dialogue. Talking through the problem with a close friend or one’s spouse or a skilled therapist will help to unravel those blind spots we cannot see by ourselves.

It’s a radical thing to stop and take time to contemplate your own life but it is the only game that really matters. On the final analysis the one thing that is certain is death. It comes to all of us. Yet many people construct their lives as if they were immortal. Materialism controls their outlook and they become empire builders. They shun death and are afraid to even talk about it. In many cultures it is a taboo topic. Still the question of what death is, is central to the question what life is? Since death really defines the parameters of life.

My favorite passage on this is from William Shakespeare’s Hamlet;

“To be, or not to be, that is the Question: Whether ’tis Nobler in the mind to suffer The Slings and Arrows of outrageous Fortune, Or to take Arms against a Sea of troubles, And by opposing end them: to die, to sleep No more; and by a sleep, to say we end The Hear-ache, and the thousand Natural shocks That Flesh is heir too? It is a consummation Devoutly to be wished. To dye to sleep, To sleep, perchance to Dream; aye, there’s the rub, For in that sleep of death, what dreams may come, When we have shuffled off this mortal coil, Must give us pause. There’s the respect That makes Calamity of so long life: For who would bear the Whips and Scorns of time, The Oppressors wrong, the poor mans Contumely, The pangs of despised Love, the Law delay, The insolence of Office, and the Spurns That patient merit of the unworthy takes, When he himself might his Quietus make With a bare Bodkin? Who would these Fardels bear To grunt and sweat under a weary life, But that the dread of something after death, The undiscovered country, from whose Borne No Traveler returns, Puzzles the will, And makes us rather bear those ills we have, Then fly to others that we know not of. Thus Conscience does make Cowards of us all, And thus the Native hew of Resolution Is sicklied over, with the pale cast of Thought, And enterprises of great pith and moment, With this regard their Currants turn away, And loose the name of Action.”

What a great human behaviorist! Shakespeare has asked all the questions and also provides us with the answer, “For in that sleep of death, what dreams may come”. It is our ignorance of what death is, that makes life so precious – it makes us rather bear those ills we have then fly to others that we know not of. Religion purports to provide the answer and we take refuge in the house of religion, clinging to the hope that they got it right. Many people have surrendered reason to religion for this reason. They just don’t know. It is the undiscovered country. It is our mind.

(to be continued)

The ‘Money Estate’ Colonialisation

“Every body continues in its state of rest, or of uniform motion in a right line, unless it is compelled to change that state by forces impressed upon it.”

Laws of Motion I – Isaac Newton

There is a widening gap between the First and Third World countries. There is an increasing polarization of wealth and a significant growth in the debt burden of the Third World. Is development per se the cause of such inequality or is it the type of capitalist development imposed by the First World and the strategies and policies imposed by the agencies set up by the First World like the International Monetary Fund and World Bank which accelerate such inequality?

Inequality is on the increase. In 1976 Switzerland was 52 times richer than Mozambique; in 1997, it was 508 times richer. Two hundred and fifty years ago, the richest countries were only five times richer than the poorest, and Europe only twice as rich as China or India.

In 1960, the 20% of the world’s people who live in the richest countries had 30 times the income of the poorest 20%; by 1995 it was 82 times. The world’s 225 richest people have a combined wealth of over $1million million. Only four per cent of this wealth – $40 billion – would be enough for basic education and healthcare, adequate food and safe water and sanitation for all the world’s people. The 15 richest have assets that exceed the total Gross Domestic Product (GDP) of sub-Saharan Africa and the assets of the 84 richest exceed the GDP of China, which has 1.2 billion inhabitants.

More than a thousand million people still live in poverty, a tenth of them in the industrialized world. Of the 4,400 million people in the Majority World, nearly 60% lack basic sanitation and more than 30% have no access to clean water. 25% do not have adequate housing. 20% have no access to modern health services. Two thousand million women are anemic (including 55 million in the industrial world). 20% of children in the world do not attend school to grade five. One in four of the world’s people still live in severe poverty. It’s worse for women than for men; and for black people than for white.

It is clear that even though we have advanced technologically, this has not contributed to the betterment of the human condition. Has imperialism, as a distorted form of development, masked the potential benefits of development in the Third World?

My view is that people who live under the belief that colonialisation is a thing of the past live under a grand illusion. The world that we live in is largely defined by self interest. Self interest has shaped the world we live in and distorted our perception of reality.

As the great Gandhi himself said,

“I suggest that we are thieves in a way. If I take anything that I do not need for my own immediate use and keep it I thieve it from somebody else. I venture to suggest that it is the fundamental law of Nature, without exception, that Nature produces enough for our wants from day to day, and if only everybody took enough for himself and nothing more, there would be no pauperism in this world, there would be no more dying of starvation in this world. But so long as we have got this inequality, so long we are thieving.”

The essence of what he was saying is that we have sufficient resources for everybody’s needs but we cannot fulfill their greed. Greed however, has been the defining characteristic of the human condition.

The feudal system developed out of the interests of the rich, influential, and powerful – the oligarchy.Their interest is focused on creating short-cut processes to wealth that bypass creative productivity in favor of various forms of stealing or looting. Historically, this involved colonialisation and slavery.

In modern times, colonialisation is found in the cartelization of resources. We have mining cartels, oil cartels, food cartels and the like. Modern slavery is provided by free trade between unequal-wage-cost economies, and the creation of debt bound economies in the third world. This is reinforced by the capitalist ideology of free and uninhibited trade. Even though economic theft through colonialisation and slavery is strongly anti-social, capitalist ideology artificially creates an environment that protects and insulates the imperialist’s position of power.

The focus of feudalism, in modern times, has shifted from land-estate types of feudalism but the underlying process hasn’t changed. Land-based feudalism limited the available land, which was the source of power. Today we have the “money-estate” form of feudalism. Today, the ‘peasant’ pays a substantial rent for his use of the lord’s property, called “royalty” or “interest”. In olden times this “money-estate” feudalist system was called “usury” and was banned by the church. The First Council of Nicaea in 325AD, forbade clergy from engaging in usury. Following centuries of church condemnations of Jewish usury, the Jews were expelled from many countries and regions. Now, it has become the global system. It is no longer resisted or abhorred and as a result, it is now looting the entire global economy.

Another feudal practice is the phenomenon of free trade between unequal-wage-cost economies. This can be traced to the time of colonialism. Today it is a global practice. Under this system the strength of the world’s poor, defenseless, nations is being exploited. The imperialists operate this free-trade process of international looting. Its’ globalised operations are looting society on a world-wide scale.

When one speaks of the “British Empire,” therefore, one speaks of this type of imperialism. Today this form of imperialism may be more predominant in the United States than anywhere else, but its’ ideological centre remains in Britain. The British monarchy serves as its structural base and ideological driver. The English legal system provides the legal platform for its power.

The British Empire no longer exists but its dominion and influence continues, by the direct domination of much of the world through its near global ownership of the media, research institutions and environmental institutions. It also exerts substantial influence on such global institutions as the UN, the IMF and the World Bank, by which its process of looting the world becomes legitimized and legalized.

The original idea of a stock-market was not to facilitate speculation, but to provide a platform on which the public could collaborate in setting up large companies that are jointly owned with the profits being shared. Today however it has largely become a speculative enterprise rewarding the gamblers and impoverishing the workers. A person who speculates that the profits of a company will increase in the future, will be willing to pay a higher price in order to get hold of these shares, to cash in the future profits. This price is more than what the shares are actually worth. A profit is generated for the original owner out of this process of speculative trading.

As the speculation continues, more cash will have to be put up. Unfortunately, for society, none of that extra cash produces anything as it doesn’t flow into the business to enhance its activities. Conversely, this money is drained out of the economy which is thereby deprived of potential investment capital. Once financial speculation sets in, society’s money no longer flows into productive processes that enriches lives, but is siphoned off into a speculative treadmill that enriches a few. It is now time to think about the shape of the world that we live in and to understand that the true nature of the world has not really changed at all. We just now have new systems of and new forms of oppression.

I once read somewhere that if we shrunk the earth’s population to one village of exactly 100 people. This is how the village would look:

60 would be from Asia, 12 would be European in origin, 15 would have come from the Western Hemisphere (9 Latin Americans, 5 North Americans, and 1 from Oceania) and 13 would be from Africa. 50 would be female and 50 would be male. 80 would be non-white and 20 would be white. 67 would be non-Christian and 33 would label themselves as “Christian”.

20 people would be receiving almost 90% of the village’s total income. 25 would live in substandard housing. 17 would not be able to read at all and 13 would be malnourished. 1 would die within the year and 2 would give birth within the year. Only 2 would have a tertiary education and only 4 would own a computer.

Its time to rethink the world we live in and the usefulness of the institutions we are depending on to get us out of trouble and the ideology that defines our reality. Let me conclude my thoughts by quoting another great man, Lincoln,

“The dogmas of the quiet past are inadequate to the stormy present. The occasion is piled high with difficulty, and we must rise with the occasion. As our case is new, so we must think anew and act anew.”

Our Social Contract Crossroad

The most important issue confronting our nation today is what is our ‘social contract’? A social contract may loosely be defined as an agreement forged between the state and the individuals that constitute that state. The term social contract describes a broad class of philosophical theories whose subjects are the implied agreements by which people form nations and maintain a social order. This means that the people give up some rights to a government in order to receive social order.

As Jean Jacques Rousseau famously wrote in The Social Contract,

“Man is born free, but everywhere he is in chains.”

The liberal view is that governments are constituted among men to safeguard their liberties and not to oppress them. The need to preserve social order therefore should not be used as an excuse to usurp and diminish the freedoms of the individual. The social contract should be designed to set us free within the framework of order, peace and harmony. Malaysia is a multi-racial and multi-ideological state. Our political system has evolved from a fairly stable autocratic substantially one party coalition system to a two party coalition.

There have been many interesting versions of what exactly constitutes the Malaysian social contract. I am of the view that a social contract to be relevant and useful must be an evolving and dynamic thing. It makes little sense to talk of what the founding fathers intended if such intentions have since been reshaped by the actual history of our nation.

Our political system is a legacy from our colonial masters – the parliamentary system of government. This is the system adopted by most commonwealth countries and it is a system that whilst creating stable governments – is susceptible to great abuse. Largely because there isn’t any Separation of Powers between the legislature and the executive. This can be compounded further by a pliant and controlled judiciary. Sounds a familiar story?

To put it candidly, this means without an effective opposition, the government of the day can basically do whatever it likes.

Today, we are at the crossroads of creating a better political system – a system where there is a working opposition and a government subject to accountability. However, I am not convinced that the players are fully aware of this political opportunity. The moment has succumbed to political opportunism.

We had a largely free and fair election, leading to the presence of a strong opposition in parliament and 5 states in opposition control. Two things flow from this – 1. The Barisan Nasional has an opportunity to act as a responsible opposition within these five states and understand the need for a strong opposition within a parliamentary system of government where there is no Separation of Powers between the executive and the legislature. In most instances parliament acts to rubber stamp decisions made by the executive. 2. The opposition has the opportunity to do the same. Create a positive force for change and accountability on the issues that matter and impact peoples’ lives daily.

What in fact has happened is – 1. The Barisan Nasional’s immediate response is that of being a sore loser. Many place the blame with Abdullah Badawi and see his removal from office as the solution. There is very little emphasis on the ideological changes that are required to make Barisan Nasional relevant again.

What we see is lip service to important ideological and institutional changes that are fundamental to Barisan Nasional’s long term relevance. Shooting the messenger rather than the message seems to be the preferred response. 2. The opposition on the other hand appears to want to press home whatever advantage they have quickly rather than by developing credibility by showing their capabilities. This whole issue of getting MPs to cross over is a short term political game where there can be no winners in the long term. Why Anwar wants to form a government in the near future is anyone’s guess but I would have preferred that he showed some respect for the peoples’ mandate. His mandate is to form an effective opposition. Any government formed by MPs crossing over is a fraud on the people. If I were the PM, I would dissolve parliament if that were to occur and call for fresh elections. Is such turmoil in the best interests of the country? Given our present economic woes, I should think not. It is a time for all parties to stop playing politics and address the broader issues of nationhood and good governance.

Several issues need to be addressed with urgency:

1. The succession issue within UMNO, should be dealt with by UMNO. My only advise is recognize the following:

• Abdullah Badawi has given this nation a new birth of freedom by allowing free and fair elections.
• He has freed Anwar during his watch.
• He has given people the opportunity to voice their dissent without stifling the media.
• He has promoted greater transparency and accountability within the government. Some say not enough – but we have to start somewhere and he has provided the start.
• He has allowed and encouraged much needed reform within the judiciary.

2. Najib’s wife has been accused of complicity in the Altantuya murder. She should be allowed the same latitude as any accused person. The presumption of innocence should apply equally to her and the AG should be convinced there is sufficient evidence before charging her. An accusation in itself, regardless of whether it is by way of statutory declaration or not, is insufficient. Same standards should be applied to Raja Petra. His allegations have to be thoroughly investigated given the gravity of the accusations.

3. Same standards should apply to Anwar in relation to the sodomy accusation against him. The police should examine carefully the complaint and objectively determine the prima facie truth of it, having regard to any statement and alibi provided to Anwar before calling for DNA evidence.

4. Those Hindraf leaders under detention should be freed immediately, as a sign of respect to the Malaysian Indian community and in recognition that many of the views expressed were legitimate. This was certainly the view reflected by the majority of the Malaysian Indian community in the recent elections. Whilst I fully condone the Home Minister’s position that law and order should be respected, sometimes peaceful civil disobedience is the time tested solution to correct many social injustices. Certainly this is the path chosen by our founding fathers and great social architects like Mahatma Gandhi, Martin Luther King and Nelson Mandela.

5. A law prohibiting party hopping should not be enacted. This is undemocratic and interferes with a person’s freedom of association. People should be free to join any political party if they have a change in ideology or beliefs. However, the should be a law requiring an Member of Parliament or State Assemblyman who hops to another party to vacate his seat. This is because his mandate is voided when he switches parties.

6. The constitutional guarantee of the freedom of religion and worship should be reinforced with clear legislative guidelines on the jurisdiction of Syariah law. Whilst recognizing the social fact that the majority of Malaysians are Muslims and therefore the need to recognize Islam as the official religion, it is nonetheless imperative that a secular constitution is upheld as an integral part of the Malaysian social contract ensuring peace, prosperity and harmony.

The Barisan Nasional Government has over the years defended this ‘social contract’ even though there have been times when overzealous politicians from within UMNO have pushed for a change in the status quo and a move towards the creation of an Islamic state. PAS on the other hand is a political party astutely committed to changing and redefining this social contract. They have steadfastly promoted the ideal of an Islamic state and have indicated that if and when they are voted into power they will amend the Constitution and introduce an Islamic state. The Pakatan Rakyat in this context faces a serious ideological divide, DAP and PKR are ideologically committed to a secular Constitution, whilst PAS has a divergent position.

We have a nation that is progressive, cultured and prosperous. We now have to create institutions that can protect individuals regardless of their political beliefs. We have to take a no nonsense stand against abuse of power and corruption to ensure a great future for all Malaysians. Let us make Vision 2020 – A vision of a progressive nation that is developed in every sense – not a nation that has a first world infrastructure but a third world mentality.

Let me conclude by sharing another quote from Jean Jacques Rousseau,

“As soon as any man says of the affairs of the State “What does it matter to me?” the State may be given up for lost.“