THE CHALLENGE OF MALAYSIAN CIVIL SOCIETY:
GOOD GOVERNANCE BEYOND BN & PR
By Dr Kua Kia Soong, SUARAM Adviser, 18 November 2012
On the eve of Malaysia’s 13th general election, the challenges of good governance whichever coalition wins, are the concerns of a vibrant Malaysian civil society. Throughout the Arab world and Asia, the actions by civil society have produced results in recent months. In India, the massive demonstrations against corruption have forced the government to legislate anti-corruption laws. It was the denial of democratic space to civil society that led to the Arab Spring. And the consequence of bad governance in the richest capitalist countries in the world, namely, the failure to regulate finance capital, has led to the greatest credit crisis ever in the United States and Europe.
The Malaysian state has failed to structurally meet the needs of the poor, disadvantaged and marginalized minorities in our highly inequitable society. Nor is the strategy by both competing coalitions of chasing after investments through neo-liberal policies, likely to fill this gap. It remains a crucial role for civil society, made up of “Concerned NGOs” (CONGOs), to play, in demanding that this imbalance be urgently and effectively redressed. At the same time, we face the challenge of “uncivil society” made up of GONGOs, or “Government NGOs” – the far-right who undermine the democratic rights of Malaysians in their pursuit of private interests and special privileges through racism.
The challenge for Malaysian civil society is to push demands for good governance covering the political, economic, social and cultural spheres and for these reforms to be as concrete and time specific as possible. These have been drafted in “REFORM MALAYSIA: Malaysian Civil Society 13GE Demands”, highlighting twenty institutions in Malaysia targeted for reform.
We need bottom-up not top-down governance, especially when we confront so-called development projects such as the MRT and hydroelectric power dams. Civil society needs to mobilise grassroots social movements to confront these global forces, to put people first before profits, empowerment above development.
What is good governance?
Governance – the process of decision-making and the process by which decisions are implemented – concerns not only the government but also NGOs, corporate organisations, unions, associations right down to families and individuals. As citizens of a democratic country, we expect good governance to include processes that are equitable and inclusive; promote participation; accountable and transparent; responsive, effective and efficient, and that follow the rule of law. This requires the establishment and strengthening of credible national institutions to implement good governance.
We aspire to good governance not because we wish to please international investors. Good governance involves not only technocratic criteria of efficiency and order but more importantly, democratic principles of participation and accountability. If governance is the exercise of authority in managing the resources of a country, then good governance concerns improving the quality of life of all citizens.
Good governance is by no means some grand utopian ideal. It is achievable now and that is why Malaysian civil society has drafted its “13GE Demands to Reform Malaysia”. The future of our country depends on it, as we try to claim a place in this increasingly competitive global world. Malaysian civil society can provide this vital contribution to promote and protect the principles of liberty, democracy, respect for human rights and the rule of law.
In the political sphere, democracy in Malaysia does not stretch very far beyond elections to the federal and state legislative assemblies. A general election is less about contending parties telling us their election manifestoes, it is more about people and civil society deciding what they think policies ought to be in a locality and the country. And candidates must convince us that they will champion our policies and carry them forward.
In economic policy, the competition by both BN and PR coalitions in chasing after investments in a free and unfettered market, especially in land, housing & property development and private health “tourism” is cause for Malaysian civil society to be alarmed and alert. It is the responsibility of Malaysian civil society to ensure that people come before profits and that people’s empowered engagement determines development. We expect both BN and PR to live up to these tenets of good governance by making clear to us (inter alia):
(i) Their progressive economic policy that includes nationalizing all utilities and essential services including water resources, health, public transport, energy; a sustainable agricultural policy to ensure self-sufficiency in rice and basic food items and a reduction in food imports; providing fair and adequate support for all sectors and a just land distribution to all farmers, irrespective of ethnicity; modernizing the New Villages by giving land titles, improving infrastructure and government assistance to small and medium enterprises; apportioning more revenue from oil and gas (60%) to the states that produce these resources.
(ii) Their fiscal policy to reduce income inequality and fund public services. We expect a higher marginal tax rate on high income earners and a correspondingly lower tax rate for lower income earners; an incremental Capital Gains Tax on property; a progressive inheritance tax; regular review and monitoring of the tax laws and implementation to ensure there are no tax loopholes; review of capital allowances and tax holidays for foreign firms; tax on all international financial transactions and hedge funds; no Goods and Services Tax and a progressive tax on all luxury goods.
(iii) Their defence policy to ensure that the defence budget is diverted to productive investments and social services and the reshaping of a national defence policy that promotes a culture of peace and disarmament; promoting ASEAN cooperation in order to pool resources and slash arms spending in all ASEAN countries; cutting the defence budget to below 1% of GDP and apportioning a correspondingly higher budget for health, education and social services; setting up a Parliamentary Defence Committee chaired by an Opposition MP as well as an independent Ombudsman to oversee the defence budget; abolishing RELA – powers of arrest and detention, and the right to bear firearms must be restricted to professionally trained law enforcement officers;
(iv) Their energy policy, and transparency, especially regarding the decisions to build mega dams, nuclear reactors and the privatization of power plants to Independent Power Producers. We need to know PR’s alternative energy policy relating to the use and investment in renewable energy sources and the implementation of demand management to encourage conservation and efficient use of energy resources.
Equity & Inclusiveness
Good governance should ensure that all citizens in the country have a stake in the country, particularly, the most vulnerable, who need to have the opportunity to improve their lot in society. Slogans such as “1Malaysia” are empty, when Malaysians are divided into “bumiputera” and “non-bumiputera” to suit racially discriminatory policies such as the “Bumis Only” enrolment policy of public sector institutions such as UiTM and other excesses of the New Economic Policy since 1971.
After more than forty years of the NEP, good governance requires the eradication of institutional racism through a “New Equitable Policy” with corrective action in all economic and education policies based on need / sector or class and not on race, with priority given to indigenous people, marginalised and poor communities; institutionalizing means testing for access to scholarships or other entitlements; implementing merit-based recruitment in civil & armed services; enacting an Equality Act to promote equality and non-discrimination irrespective of race, creed, religion, gender or disability with provision for an Equality & Human Rights Commission, and ratifying the Convention on the Eradication of Racial Discrimination (CERD).
Good governance relating to Malaysian women’s human rights and dignity requires: the implementation of at least a 30% quota for women’s representation in all decision-making bodies of government, the judiciary, political parties and corporate bodies; incorporating the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) and its provisions into national law; reviewing and amending all laws and constitutional provisions that discriminate on the basis of gender; confronting sexism and prejudice based on gender stereotypes; equal pay for women holding similar posts as men; ensuring through competent national tribunals and other public institutions the effective protection of women against any act of discrimination.
The contribution of Malaysian workers to the nation’s progress and their rights must be recognized by ensuring labour laws are compatible with the International Labour Organisation (ILO) Convention; encouraging and promoting workers’ unionisation; – legislating a progressive guaranteed minimum wage for all workers, including foreign workers; abolishing the Contractor for Labour System and restoring direct two-party employment relationship between principal/owners of workplaces and the workers that work therein; ensuring all workers are employed as permanent employees who enjoy all benefits, including maternity rights and an extended retirement age; Including workers and their trade unions in decision-making at the workplace, especially control of pension funds; enabling workers to have a controlling stake in their company stock ownership and for profits to be diverted into employee share funds; electing workers’ representatives into the management so that they share corporate decisions, including investments, technology, wages and prices.
Although they are the Orang Asal, the indigenous peoples are among the poorest sectors of the Malaysian population and the most marginalized. Good governance would demand: recognising the right of the Orang Asal to self-determination; protecting the right of the Orang Asal to sustainable development, access to basic needs and advancement of their traditions and languages; following through on Malaysia’s endorsement of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP); enacting or amending state laws that recognise and protect the native customary rights of the Orang Asal to their traditional lands and territories.
Democracy is not simply the act of casting one’s vote once every four years. Party leaders likewise hang on to their posts and monopolise positions by spreading the myth of their indispensability.
Democracy concerns maximizing opportunities for as many people as possible to participate in the political process. Throughout history, we have witnessed the exclusion of women, the poor and minority groups. More recently, the debate over whether a candidate should be allowed to stand in both federal and state seats makes a mockery of this participatory principle. If we cannot find suitable candidates to contest in the state and federal legislative assemblies, fifty-five years after independence, that is a gross failure of our national development. Or perhaps it is indicative of party leaders who seek to monopolise positions and material privileges. And it is not a question of asking political leaders to give up their privileges voluntarily, it is a democratic principle that any party that claims to be democratic should abide by. As Aung San Suu Kyi put it:
“It is not power that corrupts but fear. Fear of losing power corrupts those who wield it and fear of the scourge of power corrupts those who are subject to it.”
Fixed term of office is another fundamental principle of a democratic society that has been recognized in the US, China and many other countries. But somehow, this democratic principle of encouraging broader participation has not been discerned by many political party leaders in either BN or PR.
Malaysian NGOs have spoken loudly and clearly in the Bersih campaign for free and fair elections. It is a campaign that has not only pushed this principle of participation to the fore but also made a breakthrough in Malaysian peoples’ power. This campaign and the campaign for a safe and clean environment have shown that we need to take direct action and resort to civic mobilization to solve our societal issues – we no longer need to accept injustice and oppression.
Locally elections are vital for democratic participation in electing legitimate representatives. In the modern state, many social groups such as women, manual workers, urban settlers, farmers and indigenous peoples are grossly under-represented and local government can provide them with the channels to air their concerns. Generally speaking, at this local level it is easier for voters to influence decisions.
This dispersal of political power is therefore a concrete way to realise the civil society. Local councils should not be the arenas for “professional” NGO activists to have themselves appointed by the political parties. It should be the role of NGO activists to nominate empowered leaders from the communities they work with to sit in local councils. Greater participation can also be realized when social services such as housing, education, health and even crime prevention are decentralized once local government officials are elected rather than appointed.
Full participation in a democratic society requires the freedoms of expression, assembly and association to prevail. The freedom of expression and information cannot prevail until we abolish the Sedition Act, the Official Secrets Act and the Film Censorship Act; enact a Freedom of Information (FoI) Act at federal and state levels which is reflective of the peoples’ right to know, with the public interest as the overriding principle; prevent the monopoly of ownership and control of the press and broadcasting stations by political parties or corporate bodies. Media organs paid for by tax payers – including RTM and Selangor Times – must be independent and not be used as propaganda organs of the ruling coalitions.
Good governance relating to the freedoms of assembly & association entails repealing the Police Act, the Societies Act, the Universities & University Colleges Act, Peaceful Assembly Act 2011 and other relevant laws which restrict these fundamental freedoms, and granting students of voting age the full freedoms enjoyed by other Malaysian citizens.
Decisions taken and enforcement that follows must be done in a manner that follows rules and regulations. The recent harassment of SUARAM and the directive by the government for six government agencies to pin a charge on SUARAM show a total lack of transparency. Their actions were prompted by police reports made by some far-right group that did not produce any evidence of SUARAM wrongdoing. What evidence must be furnished before the police investigates? Is there no standard operating procedure for the police to initiate any investigation? Why haven’t these government agencies started their investigations when there is ample evidence uncovered by the French police after two years of investigation into questionable payments in the Scorpene scandal?
The lack of transparency over mega projects is another recent example of the Malaysian state’s willful negligence. The Murum dam is nearing completion but the resettlement report is still being withheld. As for the Bakun dam, all studies related to the projects have not been transparent. The affected Penan and Kenyah have stated that they have never been asked for consent as demanded by the UN Declaration on the Rights of Indigenous Peoples (UNDRIP). The project developer, Sarawak’s state-owned electricity generating company, Sarawak Energy Berhad (SEB) has not provided indigenous communities with an opportunity to grant or withhold their “free, prior and informed consent” for the project as required by UNDRIP. Even in cases where there was agreement, however, it was neither FREE from coercion; the resettlement plan was not made known to the indigenous peoples PRIOR to the start of the construction, and they were not INFORMED by access to information about the project’s impacts.
All institutions of the state as well as civil society must be accountable to their stakeholders. SUARAM is proud to say we have been proven to be accountable after the closest scrutiny by the Companies Commission of Malaysia which had pledged to pin a charge on us but had the file thrown back at them by the Attorney General’s Office. At the same time, the CCM and the Domestic Trade Minister have suffered the worst humiliation by the expose of the Auditor General that CCM had failed to bring to book corporations which had failed to pay their compounds amounting to millions of ringgit. Again, this has exposed the government’s lack of acountability in their arbitrary actions and prosecutions.
The recent expose of money laundering when RM40 million was uncovered by the Hong Kong police and purportedly meant to be donations for the Sabah UMNO and the billions of ringgit in illicit money flowing abroad every year require strong regulation and tougher laws to ensure greater accountability. According to Global Financial Integrity (GFI), Malaysia lost a total of US$338 billion (RM1.08 trillion) through illicit money outflows over the first decade of the century.
Corruption in Malaysia needs to be curbed effectively through setting up an Independent Anti-Corruption Commission answerable to parliament with the power to recommend prosecutions for all offences of corrupt practice; a Public Accounts Committee in Parliament that is chaired by an Opposition Member of Parliament and not by the ruling coalition; tighter regulation to prevent money laundering and the outflow of illicit money; eliminating opportunities for corruption by proscribing the “revolving door” opportunities between the civil/armed services and the private sector; ensuring the government ministry/department head accounts for every discrepancy in the annual Auditor-general’s report and pays for any negligence or corruption involved; open tendering all privatised projects, and for all wakil rakyat and heads of civil and armed services to declare their assets and those of their family’s.
Responsiveness, Effectiveness & Efficiency
Good governance requires institutions and processes to serve stakeholders within a reasonable timeframe and to make the best use of our resources. The BN government has been found wanting in many areas including the implementation of the Independent Police Complaints & Misconduct Committee; anti-corruption measures; reduction of crime and ensuring public safety; environmental protection measures and the use of sustainable energy sources, among others.
In defence procurements, deployment of police personnel, construction and maintenance of power plants, the BN government has flouted the imperatives of effectiveness and efficiency.
The selectiveness of the BN government in responding so speedily to complaints by far-right groups against Suaram while remaining totally unresponsive to ample documents by the French police on the questionable dealings by Terasasi is bad governance.
Rule of Law
The concept of rule of law can be distinguished from rule by law in that, under the rule of law, the law is preeminent and can serve as a check against the abuse of power. The rule of law ensures that laws are enforced impartially and there is full protection of human rights, especially for minorities. This requires the existence of an independent judiciary, an impartial Civil Service, and an incorruptible police force. The BN government has often confused the rule of law with rule BY law, in which the law is a mere tool for the government that suppresses in a legalistic fashion. The recent harassment of SUARAM has seen the most extreme mockery of the rule of law in Malaysia.
Through the years, Malaysian NGOs have been playing the important role of watchdogs to ensure the rule of law and human rights are safeguarded. Good governance to uphold the rule of law requires repealing all laws that allow torture, whipping, detention-without-trial and incommunicado detention; abolishing the death penalty in Malaysia; ratifying the International Covenants on Civil and Political Rights and on Economic, Social & Cultural Rights, the Convention against Torture and the Convention on Refugees; implementing the Independent Police Complaints Committee (IPCMC); establishing a law reform commission to restore the independence of the judiciary; reviewing the Federal Constitution and all laws that are unjust and violate human rights, and resolve the conflict of jurisdiction between civil and syariah laws; establishing a Royal Commission of Inquiry to solve once and for all the problem of citizenship for Malaysians, their foreign spouses as well as the problem of undocumented migrants in the country; ensuring social justice for lesbians, gays, bisexuals and transgenders (LGBT).
The Struggle Continues…
Real change requires focus and commitment. We have to stand up to the fascism of the far-right, the complicity of the state. We do not have to accept oppression. Like all human beings, Malaysians share a destiny to be free and independent and we have to keep struggling for it:
“And if we do act, in however small a way, we don’t have to wait for some grand utopian future. The future is an infinite succession of presents, and to live now as we think human beings should live, in defiance of all that is bad around us, is itself a marvelous victory.” (Howard Zinn)