The vote on Anwar

Ever since he burst onto the national stage in the 70s, I have felt that Anwar’s agenda was not “Malaysian”, but “Malay” and “muslim”. This was not in any way predicated on any detailed knowledge, but impressions garnered from newspapers.

When Anwar shifted from an external pressure group (ABIM) to join UMNO, I felt that he was a man who was willing to be used because he believes he can use those who would use him.

He quickly rose in rank and soon became Minister of Education. There, his move to rename Bahasa Malaysia to Bahasa Melayu revealed his Malay agenda. I still remember those years wondering whether Malaysia would be swept by Communism that was sweeping across the nations in the north, or whether the country would be “Islamised” and freedom of religion would be swept aside.

When Anwar engineered his victory to be the Deputy President of UMNO, and thus Deputy Prime Minister, sweeping aside Ghafar Baba, I saw him as manipulative and ruthless.

When he met his fall, I thought he was beaten at his own game. Reformasi felt like a means to save his own skin.

Not that I condoned such manipulations of the system, but if you live by the sword you die by the sword.

Then came 20 or so years, mostly in prison, while building his own political party founded on the principles of justice.

Today, on voting day in Port Dickson, as Anwar takes an important step towards becoming the next Prime Minister of Malaysia, I ask myself: which Prime Minister are we getting?

Do we rejoin the timeline in the late 90s and Malaysia gets the Anwar had he played his cards better? Or is this sidetrack of the timeline, Anwar’s 20 years in the wilderness, to enable Malaysia to get a better Anwar than possible twenty years ago?

The answer, of course, is “only God knows.” The one thing I am sure of is that you cannot go through the 20 years and remain unchanged.

The bible is positive that suffering can make a better man. Moses had his wilderness experience, Jacob was cheated out of many years of his life and Joseph must have at times felt that fate was cruel. But they came through better men, and better leaders, in God’s sight.

I think suffering can also be negative, in that a person can emerge bitter and vengeful. I cannot quote any biblical examples but I think life has plenty of examples.

I am a believer. I believe in grace. I believe in redemption. I believe a man can change. Not to become a different person, of course. But a change of perspective, a cementing of what is truly important, and who are important to you. I believe in hope.

If today is a referendum on Anwar as the next Prime Minister of Malaysia, I vote yes, for a man whose ambitions have brought him to the top only to crash and forced to undergo 20 years in the wilderness, and by grace has been given a second chance.

A heart for the poor

Many, many years ago I attended a course where the course leader took us through the Bible to show us that God is actually biased… towards the poor, that is.

It was quite something to have my preconceived notions peeled away to read Scripture as it is actually written.

Of course God is not unjust. But Scripture teaches me that the poor, the weak, the helpless, have a special place in God’s heart. Even to the extent that when we are kind to the poor, God regards that as kindness to Him.

“Then the King will say to those on his right, ‘Come, you who are blessed by my Father; take your inheritance, the kingdom prepared for you since the creation of the world. For I was hungry and you gave me something to eat, I was thirsty and you gave me something to drink, I was a stranger and you invited me in, I needed clothes and you clothed me, I was sick and you looked after me, I was in prison and you came to visit me.’

“Then the righteous will answer him, ‘Lord, when did we see you hungry and feed you, or thirsty and give you something to drink? When did we see you a stranger and invite you in, or needing clothes and clothe you? When did we see you sick or in prison and go to visit you?’

“The King will reply, ‘Truly I tell you, whatever you did for one of the least of these brothers and sisters of mine, you did for me.’

Matthew 25: 34-40

A few days ago I read this article by Praba Ganesan, a Malay Mail columnist, entitled “Why faith in the poor works”.

In it he shared about his uncle, who was caught in the vicious cycle of drug abuse and eventually passed away.

He was a junkie who had two wives, because he never divorced the first one. Children from both marriages, he never lived to see any of his children marry. Junkie means a drug addict. He was in and out of prisons, more out in his later years, and then passed away.

But then,

My uncle could not break away from his addiction. He brought his wife down, and later on acquired another in India with the misguided notion that marriage solves problems.

Both sets of children are saddled with his problems, but to their amazing credit they love each other even if from separate mothers. They assume responsibility for each other, and I can’t express my admiration at their resolve to be right by each other. Maybe my uncle did get something right, when he was alive.

The thing is, they are walking examples that if the state had a bit more faith in its people, it would be worthwhile.

The point Praba wants to make is that while there are many who made wrong choices and threw their lives away, there are others who make the right choices but will need help to escape their circumstances.

I am living embodiment. If there was no subsidised public education or the state government willing to back me, I’d not have a degree. I’d be shut out of opportunities. I’d be an outcast.

Which is why I fight for the less privileged. It may not be noticed, but we are nasty to those born on the wrong side of the track. I’d be at my old school’s homecoming dinner this weekend, but I do not forget where I come from. There is nothing which will make me forget where I come from. It defines me.

But what I do argue, and I do so regularly is that many Malaysians need a hand up, but not pity from their fellow Malaysians.

A country is about the potential and not about reality. And if a country is about what is possible, it realises we have done really badly for those who should have had assistance to sort out their bootstraps a long time ago. The real error is that we did not do enough so long ago.

This is where I stand, this void, sometimes in the impression it is a lonely stretch. A very lonely stretch.

There is so much we can do, really, so much. But the fact we are encumbered by history, a sense of entitlement and the burdens of history, leads us away from the real things, the opportunity to lift the most deserving from the weight of the world. Actually, to lift even the most undeserving from the filth of the world.

His convictions resonate with me. So too his experience because I too came from a poor family. I too would not be where I am today if not for the education opportunities provided by the Government.

But what caught my attention, and prompted this article, is his passion for the poor. So close to the heart of God. And I do wonder if He would be biased towards such a one. I pray so.

Mischief afoot?

It’s like a barn house dance, changing partners every few bars as the music merrily plays on.

After PH’s historic win over BN, Zahid met with Dr Mahathir. And Najib called Anwar. At some point, it seems, PAS president Hadi and PPBB president Abang Johari also met Dr Mahathir.

A few days ago Mustapa Mohamed, a senior UMNO leader, quit UMNO, followed by Anifah Aman.

The rumour mill is working overtime. “There will be many more resignations to come. PPBM is enticing Malay MPs over to strengthen its own position.”

Adding fuel to the fire, Hishammuddin recently met with Mahathir, to “listen to Mahathir’s plans for the country’s future”.

And let’s not forget Rafizi’s claim that Mahathir wants to deny Anwar the premiership and Azmin is a pawn in this game.

Underneath all these is UMNO’s desperation to get back into power. Nazri recently revealed (and Zahid has acknowledged) that UMNO MPs have signed a a statutory declaration empowering Zahid “to negotiate with Pakatan Harapan parties or PAS in its bid to return to government”.

The article goes on to say,

Nazri’s remarks have made political observers (including, I must admit, yours truly) to ask if this is a ploy to create disunity among Pakatan parties and drive a wedge between Prime Minister Tun Dr Mahathir Mohamad and Anwar?

With Dr Mahathir already shutting the Pakatan door on Umno, political observers are asking if the underlining message is Zahid and Co will be taken in by Anwar (sooner or later) considering their ties back in the days in Umno?

For the record, Dr Mahathir’s stand is Umno will not be accepted into Pakatan even if they work with PKR. Still, Umno members can join Bersatu or any Pakatan component party as ordinary members, but not come in as a party. En bloc, so to speak.

Anwar, on his part, also said there will be no cooperation between Pakatan and Umno… at least for now. Not very reassuring as some people see it.

UMNO’s dalliance with PAS has been quite public.

But then last week, Dr Ahmad Zahid and several top Umno leaders held a hush-hush meeting with Tun Dr Mahathir Mohamad in Putrajaya.

A source said it was to discuss the Malay agenda and how politics had divided the Malays.

The source said that Dr Mahathir, who is also Bersatu chairman, seemed concerned that Malay support will not be with Pakatan once he is no longer up there.

“There was nothing at the meeting to imply any sort of alliance.

“The discussion was on the well-being of the Malays and the betterment of the country,” said the source.

Perhaps we should take Wong Chun Wai’s advice,

But dig deeper, and it sounds more like a group of Umno MPs – who find the gravy train now derailed, and without benefit in sight – cooking up a juicy story to let the various insecure factions in Pakatan Harapan fight over them, for what they are still worth as MPs.

And if nothing is offered, what can be more pleasing to the egos than be heralded as the saviour of the race and religion at the party assembly for their undying proclamation to the party, race and religion?

But don’t be too quick to dismiss the story. It’s only a story, so far, and it hasn’t ended. Whether it’s fiction or otherwise, it will always be strange because this is Malaysia.

For the main PH players involved, Mahathir and Anwar, it would be sensible to keep their eyes on the ball, to work for the good and welfare of the nation and its people. PH is in power and Anwar’s premiership in 2 years is in the hands of PH MPs, not UMNO or PAS. An agreement is in place and key parties have publicly endorsed that agreement. There is no need to play games and allow insecurities to become self-fulfilling prophecies.

If you look at the things that are actually being done, the PH government is making good progress. A lot of positive decisions have been made, the latest of which is the appointment of Art Harun as the EC chairman. Ultimately this is what the electorate wants. And not more political games that will only benefit certain politicians.

I will never charge anyone for political reasons — AG

This article first appeared in The Edge Financial Daily, on September 20, 2018.

Attorney-General (AG) Tommy Thomas originally thought he would spend about an hour taking questions from The Edge Financial Daily (TEFD) and Malaysiakini last Thursday, when met for a joint interview in his office in Putrajaya.

But the allotted hour soon stretched to an hour and 40 minutes as the AG revealed, in his first interview since his appointment in June, the “mind-boggling” number of lopsided contracts the previous government had committed to because “all the ministries were doing it”, his thoughts on Finance Minister Lim Guan Eng’s acquittal and the charges brought against prominent lawyer Tan Sri Dr Muhammad Shafee Abdullah, and more.

Below is the second and final part of excerpts drawn from the interview, which was attended by Ho Kay Tat, Tan Choe Choe and S Kanagaraju from TEFD.

Law reforms

Q: Are you making progress with reforms? All the headlines so far have been on 1MDB (1Malaysia Development Bhd) and little have been about reforms.

A: Yes, as to law reform, the AGC (Attorney-General’s Chambers) has prepared a list of the promises that PH (Pakatan Harapan) made in the manifesto. The list for law reforms runs to nine pages — so many Acts are mentioned. It is just an unbelievably tall order. And it’s understandable because they are trying to clean up after 60 years of one coalition’s repressive laws. Looking at this law reform list in the manifesto, the process may take as long as a decade!

Q: What would be your priority?

A: Let me explain. First of all, you need parliamentary time. Parliament must sit longer and give more time for lawmaking. Parliament has many functions — debates, questioning and so on, but also lawmaking. I have told some stakeholders: Please prepare your own bills. So if a women’s organisation has complaints, it should prepare its own bill. If the lawyers, the engineers, the business community, or whatever, likewise; it’s easier because they know their problems. They can give us their draft laws; whether we accept them is something else. But if they give it to us, it’s faster; it speeds up the process of law reform. For example, the repeal of the Anti-Fake News Act (which is in the news again), it was done by [Communications and Multimedia Minister] Gobind [Singh Deo’s] ministry very quickly, and then sent to us. [Replacing] the GST (goods and services tax) — which is made up of five or six laws — was also done incredibly quickly, coming out of MoF (finance ministry) to our parliamentary draftsman.

Q: On the Anti-Fake News Act, a BN (Barisan Nasional) senator explained that the repeal was blocked on the grounds that the law was relevant and should be improved [and not abolished]. Will it be given a second chance to be passed?

A: Under our Federal Constitution, you can’t do anything for one year.

Q: Let’s say an IP (investigation paper) comes to you. Say, the police want to take action against somebody based on this. Are you going to take action?

A: I don’t want to foreclose my discretion if that occurs in the future. But I would be reluctant. I don’t think anyone in the AGC supports it. But it puts us in a difficult position because unfortunately it is still a law on the statue books. So it still forms part of the laws of Malaysia, and one has to respect our laws. Hence, an unsatisfactory position!

Q: After one year?

A: After that, it has to be re-presented to Dewan Rakyat, and Dewan Rakyat has to pass it again. Then it goes back to Dewan Negara, and then they don’t have a say. If they don’t pass it, it will be passed directly to His Majesty, the Agong. But there’s a one-year cooling-off period.

Q: What’s the status in terms of repeal/amendment [of laws like] the OSA (Official Secrets Act), Sedition Act, Printing Presses and Publications Act, the UUCA (Universities and University Colleges Act)?

A: The ministries must help out. Ministers must push their respective ministries. Let’s take the Universities and University Colleges Act — that’s under [the] education [ministry] I assume. What we would really want to speed up the process is for the education minister to push his ministry and his legal advisers to prepare amendments and pass them to us. Our parliamentary draftsman will have the final say. The reason I say this is because as the stakeholders, that ministry will presumably know more about universities and colleges than anybody else. The lawyers in our office are just specialists at drafting, but the subject matter or the content of an Act is something that different people would know more of. If there are any health/hospitals-related bills, then it’s better for the health ministry, and so on.

Q: The ministries should drive the changes?

A: Yes, that’s right. Take ownership. Because no one person can do it on his own. My task would be to encourage it, and to facilitate it. Because historically [the AG’s] Chambers has had a reputation, rightly or wrongly, as acting as a brake against law reform. We are now going to say, look, we support law reform; we will facilitate it. But to expect us to draft all this, that is not possible because we don’t know all the problems. Like, for example, the press. Why can’t the press, if you have a press association, why don’t you come and see the right ministry and say, “Look, this is our version of the new press act,” or whatever. They may or may not agree, but they will say, “Thank you very much.” It speeds things up. That way also, the more the stakeholders there are who are involved.

Q: You said the list itself is a tall order. Are any going to be prioritised? For instance, the Sedition Act is still being used.

A: The Sedition Act is more complicated. It requires constitutional amendment because one of the sections in the Act prohibits criticisms against the Rulers — what is regarded as the privileges of the Conference of Rulers. They have to approve. But the others like [the] Prevention of Crime Act, NSC (National Security Council Act), Sosma (Security Offences [Special Measures] Act), Printing Presses [and Publications Act], Peaceful Assembly [Act] are easier to handle. Also, the Institutional Reform Committee has done a remarkable job and presented their views to the PM (prime minister). That is also a source.

Q: What about the political financing bill?

A: That’s on the way, but I don’t know which ministry is doing the first draft. The AGC has advised that as a matter of law there is no legal prohibition to such a new law. It’s a question of being creative about it. All the political parties must be governed by the same rules. The objective would be to regularise financing and donations, and to have open disclosure. I don’t know if they want to have a limit on donations. It is basically to recognise that elections can only be held through contributions to political parties and candidates, and it is healthy to accept that this happens. It is the same in other countries.

Lopsided contracts

Q: The PM has spoken over and over again about lopsided contracts. You are quite an expert in commercial litigation and contracts. Maybe you can share some aspects or some examples, and whether these lopsided contracts can be renegotiated to reduce the financial damage to Malaysia or it’s something that’s totally out of our hands, and we have to deal with and pay the compensation.

A: There are different types of such contracts. Again, the problem is much worse than I thought. As somebody outside following public affairs, one was aware of one-sided contracts, starting with road concessionaires, power plants and the like. But once I’ve come in, I have seen literally hundreds of such contracts. Let’s divide them into external and internal contracts.

External, you have got Singapore and the HSR (high-speed rail). Whether it’s fair or not, may be a matter of discussion, but I won’t say it’s a lopsided contract. We did well and Singapore was generous by agreeing to the suspension even though the contract did not provide for it. Hence, it constituted a variation of the original contract, which Singapore agreed to. That speaks well for good Causeway relations. That is the HSR.

Then there’s China. The PM was outstanding. Not many foreign leaders have gone to China and persuaded China to vary its contracts. The PM convinced the president and PM of China. The problem is we have now to look at the consequences of the termination, even if it is a mutual termination by China and Malaysia of these contracts. We have to start hard bargaining on the effects and consequences of mutual termination. That’s a tough proposition. We’re forming teams to prepare for them.

Q: How long will that take?

A: Hopefully not too long. A lot of money is at stake, and loans are involved. We have already told China we are ready to negotiate!

Internally, there are hundreds of such contracts. What we didn’t realise is the number involved. We have highway contracts, services contracts, private finance which are build-lease-maintain-and-transfer (46 of them), ports, etc. Many categories — there are over 350 contracts of that nature. Also procurement contracts — we just drew a line in the review on the value — and that’s over 300 such contracts. The number is just mind-boggling. All the ministries were doing it. Again, we have a very strong contracts review team and they are reviewing these contracts.

Q: Just within the AGC? No external help?

A: Yes, within [the AG’s] Chambers: we don’t need external help. Some of these AGC members were very unhappy because when they objected to these lopsided contracts prior to their execution, they were overruled by their former political masters, that is, ministers. They are unsung heroes. They are civil servants, and the previous PM and the MoF just brushed them aside. They are therefore familiar with these contracts. But the trouble is that these contracts have clauses that are very favourable to the counterparties, and unfavourable to the government. We are trying to be creative and imaginative. At least two or three times a week, I spend hours with the contracts review lawyers. My corporate commercial litigation experience is combined with the draftsmen and technical advisers in Chambers.

Q: If you are able to achieve some success, it’s a lot of financial savings, right? Ultimately it’s about dollars and cents.

A: Absolutely. Like China, we’ll have big savings. Singapore is not so much savings as being deferred. That’s the objective of the exercise; the objective is to reduce overpayments.

Let me give you an example of a typical PFI (private finance initiative). The orthodox way of doing such business would be for the government, as an employer, to ask the private sector, hopefully through tender, but there were no tenders, to build, say, a university. The government, as an employer, uses the land belonging to it and asks, let’s say, XYZ Sdn Bhd to build the university in, say, three years. The cost is RM350 million, over a three-year period. Just like you are building a house, so payment will be against the architect’s certificate — progressively. So after three years, XYZ goes away and receives payment of RM350 million, and we receive the university built for us on our land. Then the university opens its doors, and students come in. That’s how it ought to be.

But under this build-lease-maintain-and-transfer PFI, you have the construction of the university, but you also have a 22-year contract where the government must continue paying for maintenance and other kinds of charges, which are just absolutely ludicrous and do not make any commercial sense. The effect of it is that the government (taxpayers) have to pay literally three times more. So in the RM350 million example, taxpayers pay RM1.1 billion over 22 years, as opposed to RM350 million over three years. As the PM has said many times, “Whoever did these stupid contracts?” That gives an innocent interpretation. There are more sinister interpretations, which you can draw!

Q: To clarify on the Chinese deals that have been terminated, what is the total figure now we have to bargain down from?

A: I think the press statements suggest RM100 billion or so.

Q: That RM100 billion will be the total cost of the project if it goes on, which includes interest payment on the loan and all that. The actual value is about RM55 million to RM60 billion for just the ECRL (East Coast Rail Link), but if you put in the interest that has to be paid over the years, it adds up to RM100 billion plus.

A: It is misleading to say it’s RM55 billion for the ECRL because the people who signed those contracts were the same people who signed the loan agreements with China because we do not have the money to build. Hence, we borrowed from China. So you have to look at the loan agreements, and the loan payments, and the true cost of the project is RM100 billion. It is dishonest to say it is RM55 billion, when it will cost the taxpayers RM100 billion after the loans are repaid. That represents the true cost of the rail project.

Q: I think what the taxpayers would be interested to know now is what’s the cost of compensation? It was reported the compensation for the ECRL could be about RM22 billion.

A: It’s too early, we have not gone into negotiation. From our point of view, we do not want to pay anything. We should start negotiating from that point.

Lim Guan Eng

Q: Do you want to respond to comments from MACC (Malaysian Anti-Corruption Commission) that they were not satisfied when the AG’s Chambers dropped the case against [Finance Minister] Lim Guan Eng?

A: I think what must not be forgotten is that the AGC did not hide behind the constitutional and legal position in Malaysia from Merdeka, that the AG, as public prosecutor, does not have to explain, or give reasons for a decision to prosecute or to withdraw charges. And there’s a long line of cases for 50 years stating just that. They have always said they do not have to give an explanation. But that is one of the reasons why in the past the AGC was much criticised, especially in the run-up to GE14 (14th general election) — I was conscious of that past. Therefore, although there is no legal or constitutional obligation for the public prosecutor to explain why it did not wish to continue with the prosecution against Lim Guan Eng, we nevertheless offered it. Instead of being credited for his openness, [Datuk Mohamad] Hanafiah [Zakariah] (the deputy public prosecutor [DPP] in charge) was criticised for his lengthy explanation. This is probably the first time since Merdeka that a prosecutor has explained his decision.

In so far as my personal involvement is concerned, I cannot understand why some do not seem to understand conflict of interest and recusal. Probably the world’s most influential or well-known AG is Jeff Sessions of the US. Within a week of his appointment, he recused himself from the Russian investigation. You cannot turn on CNN for the past one and a half years without listening to President [Donald] Trump complaining about Session’s recusal.

In his case, it was also because of conflict of interest. So what I was doing was just following a well-established principle of common law of about 300 to 400 years history, that you must not act when you are conflicted. If you are a private practitioner, you may have many friends and persons you acted for. Thus, from the time I entered office, any decision concerning Lim Guan Eng is not taken by me personally, just like Jeff Sessions does not act personally. But it doesn’t render the DoJ (US Department of Justice] or the AGC helpless and powerless. We have got 545 DPPs, and they make decisions daily. And Hanafiah is a very senior DPP. Hanafiah’s decision in this case represents the decision of the public prosecutor.

Q: And you support that?

A: My position does not matter. If one recuses oneself, one just has no say in the matter. You remain recused, from the beginning until the end of the decision-making process.

Q: There has been criticisms that MACC should be consulted, that the DPP ­­— Datuk Masri Mohd Daud ­­— who’s charging or handling the case should be consulted. At the time, I understand that they were not consulted at all, until about 7.15am.

A: That is the prerogative of Hanafiah as the relevant decision maker. It is up to him. He doesn’t have to consult anybody or keep anyone informed. I believed he explained, in his statement, that he was concerned it would be leaked.

Q: The death penalty, what’s the status of that? There’s some pressure to do away with it.

A: It is in the [Pakatan] Harapan manifesto. It’s going to happen. The good news is that senior officers from the prison department informed me that they are against carrying out death sentences on prisoners on death row. Chambers is also against it. Therefore, no one should be hanged until the new law is enacted.

Q: What about the issue of separating prosecution powers and the fact that you are a legal officer of the government?

A: We all support that. A constitutional amendment is however required. The Institutional Reform Committee also supports the separation. So no one is against it. It is thus a matter of political calculation: Can the government secure the necessary two-thirds majority in Parliament to do it?

Q: How about the criticisms that you’re dropping charges against [lawyer N] Surendran, [cartoonist] Zunar, etc? It was done quickly and some people are questioning the motives behind these charges being dropped so suddenly. Do you want to respond to these criticisms?

A: They were all politically motivated charges. The right question that should be asked is — and it applies to Lim Guan Eng also — why were these people charged in the first place? I inherited a massive problem. In the past three months, my office — and about 90% of these are addressed to me personally — received about 300 to 400 written representations from lawyers and members of the public. All those representations relate to decisions made by my predecessors. So the relevant question should be, why did they make those decisions, which require me to look at them? So whatever decisions we make in a particular case — in a sense it’s like the Court of Appeal — I will be criticised. But coming back to these examples, they were politically motivated prosecutions. But one thing you can be assured of, I will never charge anyone for political reasons. That I assure you.

Q: When you took up this job, did you expect the kind of criticisms you are getting, the kind of brickbats you have received?

A: Yes, and no. I’m surprised by some of the criticisms. The previous AGs were criticised, perhaps more by the [Malaysian] Bar at their general meetings. I myself have spoken at such meetings of the Bar, where to the best of my memory, all the AGs in the past 50 years have been criticised by the Bar. They haven’t done that so far to me, but that cannot be ruled out. In my case, it seems to be relentless and unremitting from members of the public. I guess if you compare, I may have received more criticisms in three months than my predecessor did in three years! [Laughs] But that’s part of the job, and I can smile about it. When vested interests are threatened by reform-minded measures, it is inevitable that a backlash would result.

Q: Not being of the expected ethnic or religious group, does it make your job harder in any way?

A: Not really. The law is intended to be race-free and religion-free. Everyone in the [AG’s] Chambers seem to behave that way. They don’t bring race and religion into their decision-making process, so that’s not a problem, really. And I certainly do not. Those who wish to criticise me for ethnic reasons will continue to do so.

Q: Since [lawyer Tan Sri Muhammad] Shafee [Abdullah] has been charged, do you want to respond to questions which may be raised: Now that [former prime minister Datuk Seri] Najib [Razak’s] lawyer has been charged, this is to prevent Najib from getting true justice?

A: The answer to that is an accused’s lawyer cannot say, “Please do not charge me; I enjoy legal immunity that nobody else in Malaysia does.” All of us from the PM down are under the law; we don’t enjoy immunity. An accused lawyer cannot say, “Please do not charge me because if you charge me, some of my clients will not have a lawyer of their choice, or they will have problems finding a replacement lawyer”. That is absolutely irrelevant and unacceptable. The law must take its course, regardless of consequences.

Q: I think the criticism is coming from the point of view that the charging came immediately or days after he made the revelation that [Prime Minister] Tun [Dr Mahathir Mohamad] was the one who pushed for his appointment. I think people are connecting the dots, that probably the instruction came from somewhere else.

A: The PM did not know of the charges against Shafee because I did not brief Tun about them. It was absolutely my decision.

Q: About the public caning in Terengganu. It’s unconstitutional as it is not being done in prison, caning of women and all that. In this kind of situation, as a legal adviser to the government, do you have a duty to inform the government that it’s unconstitutional?

A: It’s not so easy because syariah is a state matter and the Sultan of Terengganu is the head of religion in that state. It’s not so clear. It’s one of those areas where there is tension between the federal jurisdiction on criminal law, and syariah law which is state law. Furthermore, these are sensitive, delicate matters that must be approached prudently. But I think the caning has started a debate, which is encouraging.

Q: It needs a political solution.

A: Yes, but again not so easy.

Q: Should your position as AG be an elected position? Should you be answerable to Parliament? What are your thoughts on that?

A: Actually, we have thought about it before. We looked at what happened in the UK, which has changed its policy. The least-worst option is to have a career lawyer who is sympathetic to the government because he or she has to carry out the government’s mandate, but who is well recognised in some branches of the law — you can’t be in all branches of the law — who enjoys a reputation in the Bar and the Bench. Thus, a full-time legal adviser is better than a politician AG.

As to being answerable to Parliament, one cannot give reasons even if one is a member of parliament (MP), on many of these matters. You cannot give reasons if somebody asks you, “Why did you prosecute Mr A?” And the next day, “Why did you not prosecute Mr X?” or “Why did you choose to charge this under Act A as opposed to Act B?” You cannot answer those questions because some of them are highly confidential. I would say what Hanafiah disclosed in his six-page statement is as good as you can get from any AG in the world. So it does not matter whether an AG is a MP for accountability and transparency to occur.

Q: The statement you issued when you appointed [senior lawyer Datuk] Sulaiman [Abdullah] and [retired Federal Court judge Datuk Seri Gopal] Sri Ram was unexpectedly candid. But to your detractors, they’d happily see it as proof that you can’t really cope with the demands of your job. What do you say to that?

A: I rather be frank and truthful.

Q: And the job has evolved?

A: The legal world has changed remarkably and the problems are much graver today. If we look at common law jurisdictions — there are very few, if any, where the AG goes to court anymore. It is just not possible. I think that’s reality.

Q: You said you have not received any IPs on 1MDB, but given the scale and the many transactions, wouldn’t it be fair to say that there will be quite a number of prosecutions in the end?

A: Yes, definitely. Absolutely.

Q: Are you aware of any state witness? Anyone?

A: No, because they’re still investigating; we won’t know. Whether the MACC or police is talking to Mr X or Mr Y and asking them to turn state’s evidence or Queen’s evidence against any target, I don’t know. It may come later.

Q: So Sri Ram and Sulaiman will have their hands full?

A: Sulaiman has only one trial — SRC [International Sdn Bhd] — and he has five months to prepare and work with my team. That’s just one case. Sri Ram is to push 1MDB and perhaps argue in court for two of those cases. Sri Ram will handle the prosecution of Shafee, and probably the first of the 1MDB cases. They’re heavy trials, so we’ll have to find somebody else for other cases. That’s why the task is awesome. You can expect about five to six different 1MDB prosecutions, against like the board, the Good Star [Ltd] phase, the Tanore [Finance Corp] phase, the IPIC (International Petroleum Investment Co) phase, all of which you are familiar with. We would have to find a team for each different case. Sri Ram would be asking for December trial dates in the Shafee case, and Sulaiman has a February trial date (for the SRC case against Najib).

Q: You gave yourself two years when you took up this job. Just two years, that’s it?

A: [Laughs] I’d be burnt out by then, it’s long hours. I’m fit and fresh now because I know there’s a finishing line. So I’m happy to work hard for one year and nine months more!

Q: Is there more pressure on you when Dr Mahathir said there’d be more charges on Najib?

A: People have asked me that over and over again. My answer always has been that when it comes to 1MDB, all the 30 million Malaysians should be concerned, and talk about it because it affects their pockets for the next 20 to 30 years. It actually affects their pockets. I think people across the world should also talk about it because it tells you how dishonest politicians and businessmen can cheat a nation. So I’m all for a full public discussion. But this debate does not influence my decision-making.

Q: Are you getting pressure from the public?

A: Most are nice and supportive. They understand. Whenever they see me, they tell me I represent reforms, which they support. They say I am the face of reform.

I’ve said I don’t want people to be afraid in Malaysia. The fear element must disappear. Much of the fear element emanated from the office of the AGC. The AGC must no longer be associated with fear. We are, at the end of the day, 1,200 lawyers and the support staff, who must all believe in and practise the rule of law. That doctrine encompasses a large number of concepts, including free speech, due process and so on. The AGC must believe in them.

Q: You said people perceive you as the face of reform. Does that burden you?

A: I won’t say burden. It’s just very high expectations. I just want to fulfil it. I hope I can live up to them. I won’t see it as additional pressure. I really do not want to disappoint them.

(from theedgemarkets.com )

Part 1 of the interview

I am trying to be a reforming AG in a reforming government

Following are excerpts of the interview, attended by Ho Kay Tat, Tan Choe Choe and S Kanagaraju from TEFD, touching on 1Malaysia Development Bhd (1MDB), lopsided government contracts, legal reforms and decisions to withdraw charges against Pakatan Harapan politicians and supporters:

Q: What’s your assessment of your first 100 days?

A: The challenges have been much greater than what I had expected. What I said on the first day remains, that I have three priorities. Firstly, everything to do with 1MDB, which is not just the criminal aspects, but there’s also the civil recovery. Secondly, the lopsided contracts, and thirdly, law reforms. Those have always been my focus, and remain my focus. But it was only when I came into the office and sat down and started doing work, that I realised the awesome responsibilities attached to the office. And I think you will not know it unless you are sitting here. It’s difficult for anyone from the outside — certainly not a private practitioner, as I was. Even somebody from this Attorney-General’s Chambers (AGC) — there are about 1,200 lawyers here — even they won’t understand the amount of responsibilities [of the AG]. So that has surprised me.

Q: How about your officers’ competency? There have been some criticisms that there are not enough competent people dealing with the prosecution. Do you find that a problem?

A: I think that’s unfair. We have tremendous specialisation, but of course also lacking in some areas. For example, in things like AMLA (Anti-Money Laundering Act), very critical in the next few years, and Mutual Legal Assistance — again very critical because we’ve got to deal with different countries — we have top-class specialists. For the review of contracts, we also have excellent people as I’m personally dealing with them. In so far as prosecution is concerned, what I would say is never in the history of the [AG’s] Chambers has there been so much demand for prosecution which is because of past misdeeds accumulated over the years, problems that I’ve inherited.

Whether it’s 1MDB or not, there is a long list of cases waiting once the IPs (investigation papers) are delivered to me. Even if you have 1,000 world-class prosecutors, it’s just not enough. That tells you — it’s a commentary on the alleged crimes built up over the years. So, the pressure is awesome. That’s why we’re setting up the 1MDB unit; we’re setting up different units to cope, because we’ve never done this before. If the AGC had done this from 2011… if prosecutions had taken place from 2011 or 2012, then it would not have built up.

Just to get it in relative terms, please look at the US. Their DoJ (Department of Justice) is obviously world-class because they have so many talented people — forensic accountants, lawyers… unmatched resources; look at how special counsel Robert Mueller and his team are doing. It took more than a year before they charged anybody. Then they went very fast; they’ve charged, I think, about 20 people in the last three months and they have got a few convictions. But it took them one year. And I tell you, the 1MDB scandal is much, much more complex than what [US President Donald] Trump has allegedly done. 1MDB is the world’s greatest kleptocracy!

Q: You mentioned there’re criminal as well as asset recovery aspects with regard to 1MDB. Maybe you can share with us the approach that your office is taking concerning these two aspects?

A: On the criminal aspect, we can’t do anything until the IPs come. Just to remind you that in our system [of investigation] — many countries also have it to prevent too much concentration of power — the idea is to distribute power. For checks and balances, there are four or five investigative agencies in Malaysia, such as the police, the MACC (Malaysian Anti-Corruption Commission), Bank Negara Malaysia, Securities Commission Malaysia, [and Royal Malaysian] Customs [Department] which investigate, but they cannot charge. Otherwise, they would be too powerful. The AG’s Chambers prosecutes; we have the sole monopoly on prosecution, and we should not carry out investigations because we’re already so powerful. So can you imagine how much more powerful we will be if we investigate as well. So I’m against those who say the MACC must prosecute. They don’t know how much power that will give to the MACC, if that happens. The existing system is perhaps the least worst.

But the disadvantage of this is if the agencies do not give us the IPs, then the AGC cannot do much. We cannot do anything until the IPs are given to us. So until today, there is not a single 1MDB IP given to us. When it comes to Jho Low (who was charged in absentia for money laundering), the AGC asked the police to share their investigations, and we then charged him. So, on 1MDB, not yet, but hopefully it will happen soon.

Q: Do you know how many IPs have been opened as far as 1MDB is concerned?

A: No, I don’t know. And of course you know the MACC’s public position — I think they reiterated that about two weeks ago — is [that the investigation is] 60% [completed]. They’ve been saying that to me from the time I took office. So what they’ve told me is what they’ve told the public: 60% of the first IP on 1MDB is done. And of course, ‘1MDB’ is a shorthand description of a massive fraud done over five to six years across the world, in numerous transactions. You really have to look at it the way the fraudsters had planned it. The fraudsters designed one transaction after another, deal by deal. So there could be a 2011 fraud, a 2012 fraud, a 2013 transaction, a 2014 deal and so on.

Q: Your immediate predecessor Tan Sri Apandi Ali has been accused of conspiring in covering up the 1MDB scandal. Can we expect charges to be brought against him as well?

A: I don’t know anything about that. We have not gone in that direction. What I can tell you is — and all of you know it — there were no prosecutions during his three-year tenure on 1MDB, that’s a fact. You have to ask him why there were no prosecutions, and none during the previous AG’s time too. Because as you know, the origin of 1MDB is the TIA (Terengganu Investment Authority). Anyone living in KL would be aware that there were things horribly wrong. I was aware of things that were questionable in 2009 and 2010 just by mixing with the business community, journalists and politicians. Those in KL with an informed opinion knew something was wrong in 2009 and 2010. So why didn’t my predecessors do anything about it? You have to ask them.

Q: Do you have any authority to ask investigators to provide you with updates or to speed up things?

A: Yes, they do provide updates and all that. But that’s of no use; I would rather not be updated. I want the complete IP. It’s better to have the complete package, otherwise you’re reading it twice. If you ask my team to read it when it’s at 60%, they would have to reread it when the 100% comes. So it’s of no help and of no practical assistance, unless they give us the complete package.

Now I must answer the civil part. The civil part is absolutely neglected. Everybody forgets that because the criminal dimension is ‘sexy’ and ‘newsworthy’.

Civil recovery is the one that’s underrated and not understood at all. It is essentially to recover as much of the stolen stuff as possible, and most of them are [found] abroad.

So we start with the US. The DoJ, as you know, has been successful. They began in 2016, with [former US attorney-general] Loretta Lynch’s press conference with the filing of complaints where they have frozen assets — which we say, and the US government does not deny — belong to us in trust. Because taxpayers’ money was used, indeed stolen, to buy these assets. So they are assets that belong in trust to Malaysia, but were held by other people who misused them. So we have to stake a claim. Again, we lost three years of it.

I must remind you that the previous government had distanced itself [from these assets] — its public position was these weren’t Malaysian assets, when actually they are. Until GE14 (the 14th general election), Malaysia’s official position was they were not Malaysia’s assets. Seldom would a beneficiary tell the world “these are not my assets”, and that’s what Malaysia was doing. We only started telling the truth after GE14.

So that’s the US, [and] we have to intervene. We have appointed lawyers and they’re going to intervene in court proceedings because it’s quite technical and related to sovereign immunity and jurisdictional questions. We are receiving advice, and hope to make a decision shortly.

Then in Singapore, it has also started. Again, it’s the same process. We have appointed lawyers and they are appearing in court. We’ve got some low hanging fruits. But where there are opposition and contest, it’ll take five to six months. This first group of defendants did not object at all. They relinquished all claims. They surrendered, so it’s no problem. And Singapore wants the identities of the defendants to be anonymous. One can understand because Singapore wants to encourage more claimants to give up their claims, and in return Singapore would keep their names confidential. That makes sense. We just want the assets.

Q: It (the identities of the defendants) will be kept anonymous forever?

A: That I don’t know; it is a matter for Singapore to decide. But for us, we want the monies returned to Kuala Lumpur.

Q: Does your office have an indication how much money is involved in Singapore? The US DoJ has mentioned US$4.5 billion in its suit.

A: Singapore has not really mentioned it because they’re not really sure as there are some contests. But what will happen in the next six months or so, we will get court orders, and monies will be returned. And as you know we’ve opened an account, a special segregated new account, controlled by the MoF (ministry of finance). It’s the MoF and the new directors of 1MDB who are controlling it.

Q: So it’s an MoF-1MDB recovery account?

A: Yes, [and it’s] specially set up. After the RM19 billion hole in [unpaid] goods and services tax [refunds], there has to be a specially protected, segregated trust account earning interests and controlled by honest signatories.

Q: This is for recovered assets from everywhere, and not just Singapore?

A: Yes, it starts with Singapore. And then we’ve got Switzerland, again they’re cooperating with us.

Q: The biggest one is in the US?

A: Yes.

Q: It will take several years, you think?

A: No, I don’t think so. I think… well, the US… well, maybe. It goes asset by asset. They are ‘in rem’ actions.

Q: So it’s not a collective action?

A: No. The US claims: Let’s say they have got 10 separate complaints, then it’ll be because these are 10 different assets. So they may have one for the yacht, one for the artwork, one for this land, one for that land and so on. Just like our admiralty claim for the yacht: it is also ‘in rem’. What ‘in rem’ means is a claim against an identified property, as opposed to an individual, which would be an ‘in personam’ action.

Q: Has there been any challenge in the US? Jho Low?

A: Yes, court challenges.

Q: To be clear, in Singapore, what exactly are the assets that are involved. Is the jet one of them or not?

A: Most are bank accounts. Cash in bank. But I think there may be one or two properties, apartments.

Q: What about the private jet?

A: The private jet, we are in no hurry to receive it. Because as things stand, Singapore has done it skilfully. Singapore has taken steps to ensure that the plane cannot fly off without air traffic control, which they will not give. The plane cannot leave Singapore air space, to the best of my knowledge. But the maintenance of the plane remains Jho Low’s. So from Jho Low’s perspective, he’s got the worst of both worlds. He’s got to maintain the plane, which is parked on the runway, but cannot fly it out. From our perspective, there’s no hurry to get it — it’s safe there — let us sell the yacht, then we can turn our attention to the plane. Unfortunately, the plane doesn’t come within our admiralty jurisdiction, so it’s more complicated. We have to be concerned about giving clean title to a buyer.

Q: There has been no complaint about the AG’s office using private lawyers overseas to help in asset recovery. And yet when the AG’s office uses the private lawyers here to help in the case of the yacht, or even brings in Tuan Haji Sulaiman Abdullah and Datuk Seri Gopal Sri Ram, there has been criticism. Would you like to respond to that?

A: First of all, in foreign jurisdictions, we have no choice, absolutely no options. So we have to use local lawyers there, for instance, Swiss lawyers in Switzerland. In so far as Malaysian lawyers, I think what has surprised me is the outcry, as if this was the first time that AGC has used external lawyers. I asked Chambers to do some research on previous appointments.

In the last 20 years, beginning with our first dispute with Singapore in the International Court of Justice (ICJ) in the Pulau Batu Puteh dispute — the first one, which was about 20 years ago — we appointed a large group of foreign lawyers. I can’t understand why we did not appoint Malaysian lawyers. The foreigners charged large sums of fees, and Malaysia lost anyway.

Domestically, AGC has in the past appointed local lawyers. AGC appointed Datuk KC Vohrah, Tan Sri Cecil Abraham and Datuk Sunil Abraham and their firm, Zul Rafique for many civil matters. In our dispute with Singapore on Temasek: our joint venture in the Singapore land — whether we ought to pay the development fees. That went to arbitration. Again, I don’t see why Malaysian lawyers could not have been used. It was a straightforward case of interpretation of a contract. Quite straightforward. And I think we had three or four foreign lawyers charging hefty fees.

Q: This was in Singapore?

A: No, in London. A dispute between Malaysia and Singapore heard in London. But it is arbitration and so any lawyer can appear. Malaysian lawyers can appear. It was followed by a trademark registration case at the EU General Court. Again AGC appointed foreign lawyers. There were other disputes of an international nature which were all kept secret, and not made known to the public. Not even the Malaysian legal profession knew about them, but taxpayers were paying for such litigations.

Finally, with the second Pulau Batu Puteh dispute, where Malaysia wanted to revisit the dispute, Prime Minister Tun [Dr] Mahathir [Mohamad] decided to discontinue it. We had four foreign lawyers and two Malaysian lawyers — Datuk Abu Bakar bin Mohamed Sidek from Penang and Datuk Firoz Hussein bin Ahmad Jamaluddin from Kuala Lumpur. One of the foreign lawyers informed the prime minister that the case was doomed to fail. That’s why the PM decided to discontinue.

Coming back to domestic disputes, we’ve had Tan Hock Chuan acting for the Malaysian government in the Teoh Beng Hock inquest. We had Tan Sri Shafee Abdullah acting for the public prosecutor against Datuk Seri Anwar Ibrahim in the Court of Appeal and the Federal Court. Actual criminal prosecution — so that’s the closest analogy to Tuan Hj Sulaiman and Sri Ram.

In civil suits, AGC appointed Cecil Abraham and Zul Rafique for defendants such as Tan Sri Gani Patail, MACC, the Government of Malaysia.

Of the five lawyers I have appointed, three of them are acting “pro bono” — Sulaiman, Sri Ram and Sitpah Selvaratnam. The other two, Jeremy Joseph and Ong Chee Kwan, are entitled to be paid because they are advising us in a really specialist area, shipping and admiralty where AGC doesn’t have the expertise, and it’s a commercial deal.

Whatever proceeds we get, hopefully in the hundreds of millions, the two lawyers should be paid. But I’m closely monitoring it — it’s an hourly rate — and of course the MoF is also monitoring.

Q: Could it (the outcry) be because people were taken by surprise because you mentioned 1MDB as one of your top three priorities? And now, you’re being seen as passing over the lead prosecution, so perhaps people are taken aback by that.

A: Possibly. But you see, you can’t have it both ways. On the one hand, the criticism is that I don’t have criminal law experience and yet when I appoint two senior lawyers who have substantial criminal law experience, the criticism continues. So one has to accept: Anything one does is wrong! But the truth is that it is just not possible to do a long trial and combine the work of AG. I know that because when I was in practice I used to do long trials — heavy corporate commercial disputes. In fact, about a year before I left the Bar, I did a 40-day trial. It was a reported bonds case. For four weeks before the trial, I did nothing but preparations for the trial. When the trial starts, you have to be full-time with the trial, because at night you have to prepare cross-examination questions. When the trial is over, you have to do research, and draft exhaustive written submissions. I was a hands-on barrister who took my court commitments seriously and professionally. Knowing that first-hand, you cannot combine that with the demands of the AG, where the PM wants to see you, the cabinet wants to consult you, [while] parliament is sitting, and so on. It’s just not possible, you cannot combine all these demanding tasks with the work of counsel in court.

Q: But you have not competely stepped away from it…

A: No, I’m still absolutely in charge. Like, for example… the Shafee prosecution. The MACC team interviewed the witnesses. Sri Ram was involved in the final stages of investigations. I was involved in the preparation of the charges with the team. The final decision to prosecute is mine, and mine alone. Malaysia must use all the resources available to pursue such matters.

Q: What about your officers within the chambers itself, isn’t that a vote of no confidence?

A: Not really. Because as I’ve said, there’s just so much work, and there are many cases in the horizon as we are planning and we can see where it is going. They are part of the team and they are working together. So it’s not a vote of no confidence. In fact, the SRC (prosecution) team was happy because most of them were tutored by Sulaiman at university. They look to Sulaiman as their intellectual guru. One must look at it in terms of what does Malaysia need. The people of Malaysia want justice, they want speedy justice. The people of Malaysia deserve the best and the brightest to appear for them.

Q: What about political pressure? Has there been any on the office since you started here, any political pressure or messages sent to you saying we want this done, or that done?

A: Absolutely not. All concerned have been very good. They have all acted properly and correctly: the PM, the cabinet, the ministers. Of course many ministers are known to me as I’ve worked with them in the past. They have left matters of law to me and the AGC. There is neither pressure nor interference.

Q: Are you surprised that there has been no political interference, especially coming from a PM who is accused of keeping the judiciary on a tight leash?

A: No, I’m not surprised. Tun Mahathir is a reformed PM.

Q: You truly believe he has reformed?

A: Absolutely. In my dealings, Tun has been right and proper. In fact, on the first day, he informed me, “Tell me if there’s something wrong, tell me I can’t do it”. So I said “Yes, Tun, I will”.

Q: Have you changed your opinion of Dr Mahathir? You were quite critical of him before.

A: (Laughs) There’s no doubt in my mind that the PM and the members of the cabinet whom I have dealt with genuinely believe in reform. So I can confirm that I am trying to be a reforming AG in a reforming government!

(from theedgemarkets.com )

Part 2 of the interview

Lawyer says repeal of laws necessary to return Sarawak, Sabah rights

By Sulok Tawie

KUCHING, Sept 19 — A series of federal laws passed since 1965 should be repealed first in order to restore the rights of Sarawak and Sabah as enshrined in the Malaysia Agreement 1963 (MA63), Sarawak-born Australian lawyer Robert Pei said today.

He said in a statement the federal laws include the Constitution and Malaysia (Singapore Amendment) Act, 1965, (CMAA65), Continental Shelf Act 1966 (CSA66 lapsed in 2011) and the Petroleum Development Act 1974 (PDA74).

“Act 354 1976 (amending Article 1 of the Federal Constitution) and the Territorial Seas Act 2012 (TSA2012) which took away Sabah’s and Sarawak’s special rights were illegal back door amendments of the MA63 treaty,” Pei argued.

The president of the Sabah Sarawak Rights — Australia New Zealand (SSRANZ), a non-governmental organisation based in Australia, explained that the CMAA65 was an Act passed by the Malaysian Parliament to allow Singapore’s exit from the Federation in August 1965.

“It had the effect of altering the agreed international boundaries of Malaysia and destroying the basis of four countries for forming the federation,” he said.

“The CSA66, PDA74, ACT354 and TSA2012 had altered and reduced the agreed pre-1963 territorial boundaries of Sabah and Sarawak to enable the federal government seizure of their territorial water resources, in breach of MA63,” he said.

Pei pointed out that Part 1(3) of the Federal Constitution, which was authorised by MA63 and read subject to the treaty as the supreme document establishing the federation, specifically recognised Sabah and Sarawak’s territorial boundaries as those fixed by the former British colonial government in 1956.

He said this was reinforced by the Oil Mining Ordinance 1958 which applies to both states.

He believed it is quite impossible for the new federal government to make more than just a nominal restoration of the states “equal partner status”, which is on its face a straightforward parliamentary voting exercise.

Pei said the Pakatan Harapan government must move a motion to declare as unconstitutional and repeal the PDA74, ACT354 and TSA2012 and all legislations which had violated MA63, if it wants to be seen as genuinely fair and just.

He believed that the Sabah and Sarawak governments would be more than happy to oblige by instructing their federal parliament members to support the Pakatan government which would then have the two-thirds majority to constitutionally repeal these laws as stated by Prime Minister Tun Dr Mahathir Mohamad at a Malaysia Day celebration last Sunday in Kota Kinabalu.

He said the prime minister might have been referring to ACT 354 as a two-thirds majority is only necessary to amend ACT 354 which was a constitutional amendment.

“But it seems unnecessary to have a two-third majority to repeal the other acts as done with the repeal of CSA66 and the Internal Security Act 1960, adding that these were not Acts specifically intended to amend the Federation Constitution,” he said.

However, Pei pointed out that it was not just a matter of restoring the two states’ “regional autonomy” status but also repairing the deleterious social economic impact on their people after five decades of federal neglect and exploitation of their petroleum wealth.

First published in malaymail.com

Sabah and Sarawak in the Malaysian Federation

By Chandra Muzaffar

In reflecting on the status of Sabah and Sarawak in the Malaysian federation during a Malaysia Day celebration at Padang Merdeka Kota Kinabalu on Sept 16, Prime Minister Dr Mahathir Mohamad made some significant observations which should shape our understanding of how the two states relate to Putrajaya.

It is true that Sabah and Sarawak, together with Singapore and Peninsular Malaysia, were deemed to be four equal partners in the formation of Malaysia in 1963. This was recognised not only in the Malaysia Agreement 1963 (MA63) but also under the original Schedule 1(2) of the Federal Constitution. However, what the merger of four entities meant in the actual structure of governance and in the delineation of powers within the federation was not really clear.

It was further complicated by the tensions generated by the acrimonious exchange between the national elite under Tunku Abdul Rahman and the Singapore leadership under Lee Kuan Yew starting in early 1964 which eventually resulted in the separation of Singapore from the rest of the federation on Aug 9, 1965.

Partly because of the Singapore episode, the federal government became more concerned in subsequent years with the consolidation of the state. This was more important to the national leaders than giving meaning to the notion of equal partnership in building the nation. Economic and administrative realities in a sense – as in other similar situations – drove the national leadership in the direction of greater centralisation of power.

It was not surprising therefore that in July 1976 under Prime Minister Hussein Onn, the Federal Constitution was amended to change the status of Sabah and Sarawak. They became states in the federation like the other 11 states from Peninsular Malaysia. Of course, they retained the special grants and some of the rights bestowed upon them in 1963 such as control over immigration. Similarly, various constitutional provisions pertaining to the distribution of legislative powers and the structure of the judicial system remained.

It is worth observing that almost all members of Parliament from Sabah and Sarawak present in the Dewan Rakyat voted for the constitutional amendment. We can safely assume that this would not happen today.

A significant segment of the populace in Sabah and Sarawak appear to be unhappy with the dominance of the centre over the two states in matters such as control over their oil resources; the administration and management of public education; and the appointment and promotion of state officials in certain spheres. There is a general feeling that Sabahans and Sarawakians do not have as much say over those aspects of governance that impact their lives as they had hoped for at the time of the formation of Malaysia.

These are genuine grievances which have to be addressed. A sincere attempt on the part of Putrajaya to understand and empathise with the woes of Sabahans and Sarawakians would be key in the quest for solutions. At the same time, the people in the two states should realise that sometimes in asserting one’s rights, one should also be conscious of the need to concede and compromise in the larger interest of the nation as a whole.

When the rights of Sabah and Sarawak are respected and this respect is translated into tangible policies and programmes that benefit the vast majority of the people, they will begin to feel that they are equal to their sisters and brothers in the peninsula. There would be no need to amend the constitution to recognise Sabah and Sarawak as equal to Peninsular Malaysia. It is through improvement in the socio-economic status of the masses, underscored by respect and empathy for the people and their cultures and heritage that Sabahans and Sarawakians will be bonded to the folk on the peninsula.

In this bonding, not only will respect for cultural and religious diversity play a major role, a firm commitment to inclusiveness would be fundamental. Inclusiveness and respect for diversity have been so integral to the value system of the people of Sabah and Sarawak for centuries. These are also values that the majority of Peninsular Malaysians cherish – though sometimes they are pushed to the margins by small groups of exclusivists in different communities. Nonetheless, inclusiveness and respect for diversity hold us together, in spite of the vast expanse of the South China Sea.

It is to ensure that these two supreme values in a multi-religious and multicultural society remain at the forefront of the national psyche that some of us continue to espouse the reaffirmation of the Rukunegara as the nation’s ideology. It is a move that resonates with many of our sisters and brothers in Sabah and Sarawak.

Chandra Muzaffar is chairman of the board of trustees of Yayasan Perpaduan Malaysia.

This article was first published in freemalaysiatoday.com /

The Long Struggle for Equal Partnership

THE recent announcement by Prime Minister Tun Dr Mahathir Mohamad that the Pakatan Harapan (PH) government is committed to returning Sabah and Sarawak their rightful status as equal partners in the federation can be seen in two ways.

If this announcement made in the prime minister’s first address to Sabahans since the new government came to power is a sincere commitment and quickly implemented in the key areas of concern in which the two East Malaysian states have had their status and rights undermined and their legitimate needs neglected, then it can help open a more amicable, less contentious and more stable chapter in the nation’s history and development.

However, if it is another political wayang speech aimed at generating a feel-good response in the local population, it will reinforce the scepticism and cynicism that the Bornean states will still be treated as “stepchildren” by the new PH government and that nothing will come out from PH’s election manifesto promise of returning the status of the two states according to the Malaysia Agreement of 1963, even after more than 100 days of the new government has elapsed.

If the latter is the case and/or if the process of the return of local rights and autonomy is delayed by foot dragging or deflected by the politics of disruption and divide and rule as practised by the Barisan Nasional government since the establishment of Malaysia, we should not expect a meek or restrained response from an awakened and politicised younger generation of East Malaysians.

Rather, watch out for heightened political resistance from the East Malaysian states, which may put the entire Malaysia enterprise in jeopardy.

What is Equal Partnership?

The call for an equal partnership of the three component parts of Malaysia is not simply about a greater share of cabinet minister-ships for the politicians of Sabah or Sarawak or a greater share of oil royalties or better roads. It is also not just about mobilising a two-thirds majority in Parliament to support amendments in the Federal Constitution for Sabah and Sarawak to be equal partners in the federation with the process ending there. Or providing East Malaysians the solitary carrot of a deputy prime minister.

It covers a much larger and complex spectrum of perceived injustices, discriminatory treatment and broken promises endured by the two states, especially during the past 30 years.

According to pro-equal status activists, key grouses include the following:

  • Disproportionally meagre returns from the two states’ oil and gas resources;
  • Desecularisation and creeping Islamisation;
  • Internal colonisation by the federal civil service establishment, which has marginalised local Sarawakians and Sabahans in the running of their own states;
  • Putrajaya’s collaboration with corrupt state leaders, which has enriched a small minority and despoiled the environment at the expense of native communities;
  • The infamous “project IC”, which resulted in a massive influx of illegal immigrants, their registration as voters in Sabah and the consequential adverse repercussions on the local citizenry.

It is noteworthy that when the Cobbold Commission was set up in 1962 to determine whether the people of North Borneo supported the formation of Malaysia submitted its report, it had deemed necessary to emphasise the following: “It is a necessary condition that from the outset Malaysia should be regarded by all concerned as an association of partners, combining in the common interests to create a new nation but retaining their own individualities. If any idea were to take root that Malaysia would involve a ‘take-over’ of the Borneo territories by the Federation of Malaya and the submersion of the individualities of North Borneo and Sarawak, Malaysia would not be generally acceptable and successful.” This concern has now come home to roost.

Today we are seeing more than resistance to the loss of local autonomy promised in the initial Malaysia agreement. New local parties that are emerging are not simply seeking the rescinding of the constitutional amendment of 1983, which downgraded both the states from equal status to one of the 13 states of the federation. They are also pushing for a larger agenda of socio-economic and political change through return of the rights and interests of the states as enshrined in the 20/18-point Agreements, the London Agreements and the Inter-Governmental Reports.

At the same time, less restrained individual and unorganised groups (through social media) are also now in larger numbers posing the unthinkable and potentially seditious question as to whether the two states are better off independent than to remain in Malaysia. What will happen next is in Putrajaya’s ball court.

We can expect constitutional change to be a slow and protracted process, and to possibly take more than a few years to be successful.

Meanwhile, issues of local autonomy especially in economy, education and religion resonate strongly among all communities, especially with the more urbanised and highly educated. The sentiment that the two states has been badly treated by Putrajaya is a widely shared one, especially among the young who resent what they perceive as the recolonisation of their state by federal officials pushing the Putrajaya line. These issues can and should be corrected immediately.

However, while Putrajaya continues with soothing words about the rebalancing of state and federal rights and powers, the actions of various agencies of government indicate that the old regime’s mindset remains and the opposition and intolerance to any democratic aspiration for equal status and rights has not changed.

The case of the recent arrests and alleged manhandling of young protesters calling for stronger state rights and demanding equal education opportunities, better public transport and job opportunities among 10 demands is a salutary example.

As one of the leaders of the youthful assembly calling itself Pandang Ke Sabah (Look Towards Sabah) rally noted after the police crackdown on the group of protesters: “It’s the morning of Malaysia Day, for God’s sake and it was really peaceful. We thought now that we are living in the era of Malaysia Baru, we are free to speak our minds.”

More disappointing and shocking was the recent written reply by the Education Ministry that the use of English as a medium of instruction in schools in the two states would violate the Federal Constitution, National Language and Education Act.

In response, Sabah’s deputy chief minister, Datuk Seri Madius Tangau pointed out that the right to use English as a medium of instruction in national schools was in accordance with the Malay­sia Agreement 1963 and was in no way illegal nor an attempt to challenge Bahasa Malaysia, the national language. He also noted that it was not only not unconstitutional but a right and the way forward.

Sarawakians and Sabahans can expect many similar instances of Putrajaya’s intransigence before they can win back their equal status and rights.

This article was first published in thesundaily.my

The hope of Anwar

Today, Khairy said that “Anwar is not a king“. It is, of course, a loaded political bit of mischief, because Anwar never claimed to be one, and his “PD Move” is not a coronation.

Kit Siang called on PD voters to support Anwar, saying that this is the beginning of the second phase of “new Malaysia”. Kit Siang is of course appealing to sentiments that GE14 has ushered in a new Malaysia and he made it very clear that Anwar’s premiership claim is very much part of the plan.

Many others though, significantly those who are in “civil society” (I use this loosely to cover those who are not connected directly to political parties) criticised the PD Move because it involved sacrificing an MP. Some think Anwar should have waited until GE15 to prove his legitimacy. Others think that either his daughter Nurul Izzah or his wife Wan Azizah, should have been the ones sacrificed and because they are not, still others like Ambiga, raised issues of nepotism.

Wong Chun Wai addressed this with characteristic directness.

It’s pointless being the PM-in-waiting if one isn’t elected. We could not give two hoots about the charade and antics of politicians, who have the audacity to tell us they dislike politicking. We want certainty, stability and succession planning.

Anwar being named successor and elected into Parliament will provide better comfort because otherwise, an ugly scramble for power is bound to ensue, which we have no wish to see.

Then there is the issue of family dynasty, but let’s not get into this because the Lim brood has two MPs and a senator, the Karpal clan has two MPs and one state assemblyman, and of course, there’s the PM and his Mentri Besar son.

Yet others are looking forward to the hope of Anwar; here is a person who wrote to encourage Anwar to be a PM who would be known as “Bapa Perpaduan Malaysia“, the father of Malaysian unity.

This nation needs a Bapa Perpaduan Malaysia. It needs someone who can remove the sensitivities that have divided the people, causing us to pull each other down or suppress others. This nation needs a Bapa Perpaduan who can lead all of us to respect and accept – not simply tolerate – each other’s differences; to live and work together for the best interests of our descendants and the nation. This nation needs you to do that. You can be the Bapa Perpaduan that we yearn for; the Bapa Perpaduan who helps us visit each other’s places of worship freely, who gives us the right to worship in our own ways as long as we do not intrude, interfere or impose our values onto others. We need you to do that.

There is no doubt that Anwar is a polarising personality. And there is no doubt that with the PD Move, Anwar is very much back in the thick of Malaysian politics.

Anwar has his baggage. In his meteoric rise to the top when he was in UMNO he was ruthless. He was, in my mind (and to be honest I was not very informed those days), a Malay nationalist, championing the Malay cause to the detriment of others in the country.

But let’s be honest and say that Mahathir has his baggage too and did much harm to the country during his first stint as PM.

To my mind, there is no one like Anwar in Malaysia today who can fill Mahathir’s shoes. I think only Anwar has the stature and commands the respect of all the major parties in PH, as well as major institutions in Malaysia.

But even more so, Anwar has the respect of the Malay community and is a voice they can listen to, especially when it comes to persuading them to embrace change. Anwar can be very persuasive.

For now, politics in Malaysia is very fragmented and however you like it, personalities and not political parties count a great deal, when it comes to PM material because he has to command the respect of different parties with different agenda and ambitions. I think I am being realistic when I ask the question, after Mahathir, who? At 93 anything can happen any time.

Anwar has his own agenda, for sure. He has his ambitions, no doubt. And he has his way of doing things that you might find disagreeable. But of course! So many different people have different expectations of him. But he can only be himself and no one knows who he will be as PM.

Right now, we only have the hope of Anwar to replace Mahathir whom, when we voted in GE14, we have no idea who he will be as PM either.

But think the other way round and you will see that the country needs him for now. Many people dislike his actions in positioning himself to take over as PM and see it as entitlement. I see it as the only choice available to the country.

Those who want him to wait till GE15 to lead his party to victory and establish his legitimacy are willing to risk the country being destabilised should anything happen to Mahathir. They should consider that PH stood on the platform of Mahathir and then Anwar within these 5 years, as Kit Siang is saying. It was a tag team that was put forward in GE14. And surely he does not need to prove he can win an election to become an MP.

It does no good to undermine him unless there is someone else who can take truly over from Mahathir. Yet many who wanted PH to succeed are now undermining him. Sad, or foolish?