NO ELECTORAL REFORMS – NO ELECTION!

In the Proclamation of Independence, the Father of Independence said in a one-sentence proclamation:

“Now in the name of God the Compassionate, the Merciful, I Tunku Abdul Rahman Putra …..…., the Prime Minister of the Federation of Malaya with the concurrence and approval of Their Highnesses the Rulers of the Malay States do hereby proclaim and declare on behalf of the people of the Federation of Malaya that as from ……..… the Federation comprising ……....is and with God’s blessing shall be forever a sovereign democratic and independent State founded upon the principles of liberty and justice and ever seeking the welfare and happiness of its people and the maintenance of a just peace among all nations.”

Fifty years after independence, if our beloved Tunku is alive today, he would be a heart-broken old man. For instead of a democratic State founded on the principles of liberty and justice where the people are living in unity and happiness, Malaysia is now an undemocratic State with neither liberty nor justice where the people are in turmoil and dangerously polarized in race and religion – more than ever in our history.

The state of this nation has never descended so low.

STATE OF THE NATION BAD

Our democratic institutions are in tatters, as exemplified by the unprecedented arrogance of power displayed in recent days in crushing the fundamental constitutional rights of peaceful citizens through the police force acting in cohort with the attorney general’s chambers and the courts. These three bodies, which are heavily corrupted as revealed in recent scandals and investigations, are increasingly identified as the triumvirate of oppression serving the illegitimate political interests of the ruling power.

Meanwhile, administration of the country has rapidly deteriorated, with Prime Minister Abdullah Badawi showing every sign that, despite pledges to the contrary, he is plunging the country to greater depths of mismanagement with his weak and rudderless leadership. Abdullah has not only failed to rectify Mahathir’s faults, but he has compounded these with his own weaknesses. Apart from institutional deterioration and racial polarization as mentioned above, this country is facing crisis of a new dimension: uncontrollable crime rates and runaway inflations in the backdrop of an economy that has run out of steam. These are seen as inevitable consequences of an incompetent political leadership loosing its moral authority to rule through its own indulgence in unashamed corruption and abuse of power.

This scenario will get worse as the economy runs into rougher waters in the days ahead in anticipation of a global slowdown triggered by the US subprime mortgage crisis. Malaysia is ill equipped to face any economic reverses due to its structural weaknesses: declining economic competitiveness against its regional neighbours, a racially segregated population perpetually embroiled in racial squabbles, critically impaired rule of law with a badly tarnished judiciary and police and a delivery system maimed by corruption. That investors have lost confidence in this country is reflected in the latest UN produced FDI figures which show Malaysia has already entered the capital flight mode, in contrast with its neighbours which enjoy robust net capital influx.

As globalization continues its unrelenting march forward, economic noose on this country will tighten, leading to intensification of racial strife. An eventual meltdown is on the cards unless the current decline is checked.

How did we land up in such hot soup? Didn’t we inherit from the British a first-class administration and a judiciary second to none? Isn’t Malaysia richly endowed with natural resources, free from natural disasters? Wasn’t Malaysia a leading economy in this region two to three decades ago when our economy was even ahead of those of South Korea and Taiwan? Why has Malaysia slipped so badly in the past one to two decades?

The answer lies in our political leadership. And the main culprit is UMNO, which has been transformed from a nationalist political party to a racist body of wealth seekers. By clinging to the long defunct NEP, which has been racialised and twisted to generate illegitimate wealth for its leaders and cronies, UMNO has inflicted incalculable damage to the nation and ironically to the Malays as well, for whom it professes to serve. The resultant national regression with the corollary loss of national competitiveness is proving to be the undoing of the nation.

PERVERTED ELECTORAL PROCESS

How does a corrupt racist body like UMNO maintain its political hegemony for so long? This is done through a combination of a) monopoly of media and b) subversion of the electoral process through an openly biased and partisan election commission and through abuses of government resources and institutions such as police, attorney general, ACA, judiciary and even Parliament (by passing unfair legislation). The former factor ensures that the minds of the people are conditioned and shaped as desired by the ruling power, while the latter factor maximizes the winning chances through gerrymandering and unethical practices with collusion of the election commission and government institutions. Under such grotesquely tilted playing field, the incumbent – particularly a corrupted one – can rule in perpetuity.

Election under such a perverted system among a badly informed electorate is a meaningless exercise to ascertain the true and free will of the people. Without a fare election, democracy is dead. And without democracy, fundamental liberties and justice as guaranteed in our Constitution are mere empty words, as proven in the present wanton oppression of the people. It is therefore not an exaggeration to say that the essence of our Constitution as well as the democratic foundation of this nation have already been destroyed through such an electoral system.

Hence, meaningful electoral reforms to the extent of restoring election as a fair criterion for ascertaining majority support are absolutely essential, if this country is to function as a democracy again.

Only when democracy is restored can we hope to check the unrelenting slide of this nation towards oblivion under the present leadership. Electoral reform is therefore seen as a life-or-death issue, for which there can be no compromise.

That our electoral process is deeply flawed is an undeniable fact. Fraudulent practices and irregularities have been well documented by opposition parties, election-watch bodies and even the courts (refer to Likas election judgment where tens of thousands of ‘phantom voters’ consisting of illegal immigrants were revealed as only the tip of the ice-berg), and these remain unexplained and undisputed. I will not repeat any of these except to highlight recent utterances of E C Chairman Rashid Rahman which are revealing of the degree of political partisanship of this commission. Rashid publicly claimed that only the ruling BN was capable of governing the country. On a separate occasion, he also challenged opposition parties to withdraw from the election if the latter thought that election was unfair. Now, don’t these statements sound like those from a BN loyalist? Such atrocious conduct of the chairman of a supposedly neutral organization to conduct fair elections only emphasizes the urgency and indispensability of a thorough revamp of the E C and the entire electoral process.

On 10th of November 2007, BERSIH delivered a petition for electoral reform to the Yang di-Pertuan Agong, accompanied by 40,000 peaceful citizens (this number would have exceeded 100,000 if not for the stringent police and government clamp-down). In this petition, BERSIH – a coalition for clean and fair election consisting of opposition parties and some 70 civil society organizations – has outlined comprehensive reforms that will regain confidence and restore democracy to the people, for which a royal commission was proposed to spearhead the movement.

BERSIH also appealed to the Agong to use his discretionary power under Article 40 (2) of the Federal Constitution to withhold consent to a request for dissolution of Parliament – expected imminently - unless four urgent measures of reforms are carried out. These four urgent measures are the minimum required to avoid the election being turned into a farce.

To date, both the E C and the government are unresponsive to the proposal for these urgent measures except for the use of indelible ink.

SHOULD THE AGONG ACT?

I have in my previous article “Can the Agong withhold consent to dissolution of Parliament?” advanced the constitutional basis that supports the Agong’s discretional power to act on this issue, independent of whatever constitutional convention that may be practiced in United Kingdom, and I will not repeat the argument here.

The question at hand is: is the proposed electoral reform an issue of such gravity that it justifies the Agong exercising his power under Article 40 (2) (b)? Conversely, we can also ask: if there is no reform, is the consequential damage to the nation so critical that it should move the Agong to exercise his power?

On the other hand, we should also ask the following questions:

How would the nation suffer if election is delayed for a while for some essential short term reforms to take place, keeping in mind that the term of this government expires only in 15 months’ time?
What benefits will accrue to the nation when an election is held after urgent reforms have taken place?
If we do not reform, are we not guilty of willfully prolonging a serious breach of the fundamental principle of our Constitution as a democratic state?
What valid reasons are there to oppose electoral reforms?
What valid reasons are there to object to the formation of a royal commission to carry out the necessary investigations and review?

It is anticipated that the exercise of such discretionary power by the Agong will raise eye-brows, as many still tend to draw parallel between the Queen of England and our Agong, and maintain that the Agong, like the Queen, should only play a ceremonial role.

Without repeating the arguments advanced in my previous article regarding the implications arising from the difference between UK’s unwritten constitution and our written constitution, I would submit that our Agong plays quite a different role, in a completely different historical and social context.

The independent state of Malaya was formed half a century ago out of a population of diverse races, religions, cultures and languages. The institution of the Yang di-Pertuan Agong (meaning Paramount Ruler) was then created to instill loyalty and to provide a symbol of sovereignty and unity that would bind the diverse races together. In fact, the Agong’s role is more than symbolic under the Constitution. As head of the Executive, the Agong personally performs many important functions of state, such as appointing the Prime Minister, cabinet ministers, all judges, attorney general, members of the election commission, inspector general and other key positions; and he also summons, prorogues and dissolves Parliament, and proclaims a state of emergency if required, etc.

Though most of these functions are carried out in accordance with advice by the Prime Minister/Cabinet, some additionally with consultation with the Council of Rulers, the Agong has, however, the discretionary power to perform some of these based on his own judgment. Even where the Agong has to act according to advice, he is entitled to call for any information concerning the government (Article 40 (1)). This implies that the Agong can be in constant consultation over matters of state if he wishes to be so involved – mostly with his Prime Minister, and sometimes with the Council of Rulers. It is through these consultations that the Agong can exert his quiet influence over important affairs of the state. Given this constitutional authority, a wise and diligent Agong can act as a benevolent force of check and balance to prevent the government from moving wayward beyond the bounds of the Constitution.

Take for instance the issue at hand: electoral reforms. If the Agong wants to see the reform process underway, all he needs to do may be just a friendly but firm word of advice to the Prime Minister, the latter being conscious that the advice could be buttressed by Article 40 (2) if need be.

A courageous and just act to defend the integrity of the Constitution, such as the recent decline to accept the PM’s nominee for the vacancy of the Chief Judge of Malaya in early 2007, would enhance immensely the prestige of our constitutional monarchy, and win the respect and love and loyalty of the common people, for whose welfare the royalty and the government are supposed to serve.

It is hoped that our royalty will continue to act courageously in that spirit and make this institution into a bulwark of stability to bring peace and justice to the people.


Kim Quek