Hello. It’s been many moons I have not written, due to a multitude of factors, of which I shall not bore you. To re-begin, I shall now post articles I’ve written for random publications in recent months. They may be stale, but for Malaysia, where many things change rapidly, the issues remain the same. We’re circling the roundabouts many times over, chasing our own tails.
But here you go. To those interested in reading, welcome back to Tricia Yeoh’s lair.
Water management: Selangor can borrow buckets from Penang
(First published in Penang Monthly’s inaugural issue in December 2009).
The new political situation in Malaysia means greater diversity in how problems are perceived and how they can be solved. Policy competition between states also means that each state has more opportunities to learn from others. This is welcome because some of the challenges these states face today are enormous.
Reports of the intense water battle in Selangor have featured in the mainstream media throughout 2009. Most of these speak of tensions arising between the Selangor State Government and the Federal Government, or with water concession companies, over its attempts to reach a solution in its consolidation exercise. Numerous incidents have peppered the exchange, and it is difficult to determine whether a successful outcome will be achieved in the near future.
This is unfortunate as the water industry is already muddled with problems and a solution needs to be reached immediately.
Although the Selangor government is pressed for time and seeks an urgent resolution, there are other parties involved which have posed stumbling blocks. It is important to present the background behind this mess.
The source of the problem
The Selangor water services industry represents all that went wrong with Malaysia’s overzealous privatisation policy. The need to restructure the water industry is itself an admission of this failure.
In the past, the Selangor water industry was managed by the state itself, including control of water resources and water treatment, whilst water distribution was handled by Jabatan Bekalan Air Selangor
(JBAS), also a state agency. However, when the-then Prime Minister Tun Dr Mahathir Mohamed proceeded to privatise public entities, lucrative water concessions were given to private companies. Eventually, JBAS was corporatised into Perbadanan Urus Air Selangor (PUAS), and later privatised into Syarikat Bekalan Air Selangor (Syabas). The water treatment operations were privatised, and concessions given for periods of up to 30 years to three separate companies – Konsortium Abass, Syarikat Pengeluar Air Sungai Selangor (Splash) and Puncak Niaga Sdn Bhd (Puncak).
The original reasons for privatisation were:
• To increase efficiency based on supposed professional industrial expertise, and
• To let the private sector take responsibility for the water industry and thus leave the government free to focus on policy decisions.
Even if these reasons were justified, in reality, the concessions were given to companies whose managements had no experience in the water industry to begin with. These eventually became loss-making entities which ran up huge amounts of debts. The quality of water, and of service delivery, became extremely poor. The companies have been criticised for being favoured for their close contact with the political fraternity.
The mad scramble to privatise the water services industry therefore left it badly fragmentated:
• The state government controls raw water resources,
• Three separate concessionaires are in charge of water treatment operations, and
• One company handles water distribution.
Although the state government owns shares in Abass and Splash, and also Syabas through its state company Kumpulan Darul Ehsan Bhd (KDEB), this does not allow it to manage the water industry holistically.
The Water Services Industry Act adopted in 2006 was supposed to reverse the fragmentation of the water industry. Some quarters propound that infrastructure utilities such as water services, health services and public transportation should not be privately owned, and public services are not compatible with profit incentives. More market-driven proponents believe that if done correctly, privatised entities can indeed provide an efficient alternative to state-run monopolies. True privatisation, untouched by corruption and cronyism, leads to healthy competition, improvement in services and lower prices, which benefit the public.
Whatever the case, the way the Selangor water industry was privatised has produced undeniably disastrous results.
Reversing the flow
In 2006, the Federal Government grandiosely embarked on an upriver journey to remedy the situation. Two Bills – the Water Services Industry Act and the Water Services Commission Act – were passed and “water services” was transferred from the State List to the Concurrent List in the Federal Constitution, thereby giving federal and state governments joint jurisdiction over water issues. Next, the Cabinet in early 2008 decided that the restructuring of Selangor’s water industry would be led by the state government itself.
Little did they foresee that the results of the general elections in March 2008 would capsize their plans. The opposition front took over Selangor.
For a start, things were not hostile. In fact, the state government agreed to all points raised in the WSIA and to the Federal Government’s noble intention of consolidating the fragmented companies and forming a holistic entity. In its model, the state government would transfer some of its assets, along with the concession companies’ assets, to Pengurusan Aset Air Bhd (PAAB), which was formed under the Ministry of Energy, Water and Communications for this very purpose.) PAAB would then be the sole licensee, operating everything from raw water to water treatment right up to water distribution. It would hire a new and independent management with solid international experience, replace pipes, and improve water services significantly.
Trouble came at several different stages and from different quarters. The Federal Government claimed that the state government deliberately delayed the consolidation exercise. The truth was that the concession companies were not satisfied with the offers made, and were negotiating for a higher amount.
Selangor had already given them what it considered fair and reasonable returns on their injected capital (at a 12 per cent rate, which is justified based on termination rates found within the concession agreement itself), as well as 1 x Book Value on their assets. Most recently, two out of four concession companies have accepted the state’s offer (with some provisional clauses yet to be finalised). However, without the other two, it is still uncertain what the Federal Government will do. In fact, it has the power to terminate concession agreements if the minister believes it is in the national interest to do so.
Unfortunately, the ties between the Federal Government and concession companies Syabas and Puncak are extremely strong, and it is almost impossible to extricate the demands of one from the other. The fact that Puncak sponsors the Umno (leading party in the Barisan Nasional ruling coalition) general assembly every year says something about the independence – or lack thereof – of this concession company. Where favours are granted one way, it is invariable for it to be likewise granted for the other’s mutual benefit. You scratch my back, and I scratch yours.
Worse, Syabas is said to have breached crucial parts of its concession agreement, including giving more than 72 per cent of contracts worth RM600mil to selected companies, hence failing to practise open tenders. RM51.2mil was used to renovate its office when only RM23.2mil had been approved, amongst other things. These reflect badly on a professional company that’s supposed to exercise transparency and public accountability.
Learning from Penang
This regular mess could have been avoided if the previous BN state government had been able to exercise
some wisdom and foresight. Because it privatised a loss-making entity from PUAS, Syabas would never have sufficient capex (capital expenditure) to replace pipes and reduce non-revenue water (NRW). It would have to constantly rely on state and federal funding, which contradicts the reasons for privatisation in the first place.
Penang, on the other hand, is a role model that should and could still be emulated. Perbadanan Bekalan Air (PBA) was corporatised – and not privatised – in 1999 to serve Penang as a professional corporate body. Its level of services is unprecedented in the country and it runs a very efficient call centre and corporate website. Its NRW was as low as 16.9 per cent in 2007, a stark contrast to Selangor’s 38 per cent in that same year. In fact, Penang’s NRW is one of the lowest in the world, a record that the islanders should certainly be proud of.
In addition, its good track record is reflected in its low and competitive tariff rates. Penang has one of the lowest tariff rates in the country, an average of 31 sen per 1,000 litres compared with Selangor’s rate of 72 sen for the same amount (without taking into account the free water for the first 20m3 per month). Penang has thus been able to successfully corporatise its water body, provide low water tariffs, and still enhance its NRW to its current rates. Of course, both states are very different and comparisons are difficult: Penang is a self-contained island; Selangor is a sprawling state. Nevertheless, there is much that Selangor can learn from Penang.
For the rakyat
The water services industry’s ultimate objective should be to serve the rakyat. This, in fact, was a primary reason why the Selangor government insisted on leading the consolidation exercise. It had after all pledged to reduce tariffs and increase service quality. By paying concessionaires a whopping amount for their companies (over and above what is reasonable), the state would effectively be lining their already well-oiled pockets with money taken directly from taxpayers. This is a double whammy for citizens, who would have first paid high amounts in taxes, and then have to, cover the ridiculously high compensation paid to concession companies.
As highlighted at the start, the problems faced in the Selangor water industry are an accurate reflection of the nation’s failed privatisation policy. We see this pattern replicated in other industries, toll concessions and healthcare services. The intentions of the Mahathir era to improve efficiency through the Malaysia.
Incorporated agenda were noble, but then again, the road to hell is often paved with good intentions, as they say.
The days of cronies in shining armour paid for by the rakyat must end, and this is precisely what the Selangor government is attempting to achieve in its battle over water.
I wrote a review recently in the Sun on Liew Chin Tong’s book… Here it is!
For ordinary men and women
Tricia Yeoh
SPEAKING for the Reformasi Generation by Liew Chin Tong (Bukit Bendera MP) compiles the author’s writings between 2003 and 2009. It traces the thoughts and struggles of a Malaysian’s political awakening birthed out of the Reformasi movement of 1998. His views, sometimes frustrated but mostly rational, epitomise those of his comrades, making this book an important read since many who were bitten by the “reformasi” bug in their youth are today significant public figures.
This sentiment is captured perfectly by Liew in his personal recount of his participation in the protest against Anwar’s arrest. He states that the “cramped pilgrimage for justice” is “the deepest common bond among the leaders of Pakatan Rakyat”.
However, far from romanticising a singular event, Liew demonstrates incredible grasp of political realities. His passion for political governance is shown through prolific writings from party politics to administrative reform. In my conversations with Liew I have found a rare combination of idealism and pragmatism.
With pride, he says that “Malaysia has been in search of an alternative to Barisan Nasional, and Pakatan Rakyat is an idea whose time has come”… and is “likely to survive for a long time”.
This prediction is an optimistic one – rightly so, written by a Pakatan member – but nevertheless warrants attention. It is a stark reminder amid arising doubts that Pakatan needs to prove itself as a “viable alternative” by succeeding in its state governments.
According to Liew, though, co-operation among the three parties has improved tremendously. The “day-to-day working relationship” forces each member party to think along national lines instead. “The cultural breakthrough that sees PAS accepted by non-Malays and DAP by the Malays is gaining momentum,” recently culminating in the first Malay DAP (Democratic Action Party, of which the author is a member) branch formed.
One respects Liew’s boldness in being one of the few Chinese to study PAS (Parti Islam Se-Malaysia) with great interest. An entire section is dedicated to PAS – not only in a rigorously analytical manner, but in a genuine attempt at understanding their religious philosophies. His inclinations towards the Erdogan faction are clear, while his respect for PAS is evident in a column dedicated to the late president of PAS, “In Memory of Fadzil Noor”, whom he attributes as providing the reformasi movement “one of its most important organisational supports in the early days”.
The relationship among the three Pakatan parties is key, and this book underscores the importance of forming common objectives subsequently informed to the public. The Pakatan convention in December may be an appropriate avenue for this.
Lest he is accused of mere “politicking”, Liew presents clear government reform measures. He repeats the mantra of “a better Parliament”, through increased budgetary Parliament allocation to improve its facilities, and live telecast of its debates. The reader finds it shocking that these fundamental needs are not provided for.
Liew also raises important reforms on public transport and for Kuala Lumpur to have an elected government.
Liew succeeds in planting a question in the reader’s mind: “How much longer can we be complacent about Malaysia’s dire situation?” And indeed, he has taken up the responsibility of being an elected representative, the less-trodden path of his peers. Through his writings, a strong sense of idealism seeps through, although he admits that “politics is about perception”.
And perception seems to be the name of the game these days. Most prominent, however, is Liew’s opinion of Prime Minister Datuk Seri Najib Razak. His Achilles heel lies in his very heritage, which is “(his) political blue blood and … inability to comprehend the common man’s life and needs”. This observation is visibly contrasted against his own raison d’etre where “reformasi was not just about Anwar; it was very much about us.”
Perhaps then, this is what the reformasi generation has sought to represent. The needs and dreams of the everyday Malaysian. It is my hope that Pakatan Rakyat can encapsulate exactly this: the lives of “ordinary men and women”, as Liew so accurately writes.
Tricia Yeoh serves as research officer in the Selangor State Government. The views expressed here are her own.
My comment for theSun in commemoration of Malaysia Day was published today, which can be found here.
In the article, I make a reference to 1Malaysia. It was meant to be sarcastic in nature, but unfortunately that little quip was edited out… so it looks and sounds as if I am praising it.
Some other subtle hints I make were also edited, so I think it’s best to publish the article in its original form here. Happy Malaysia Day, everyone!
* Malaysia Day is going to be busy. Just got back from this morning’s Fast4Peace event, a grassroots effort to fast for the nation on Malaysia Day. Was a little late as I only decided to go after I got up for the usual sahur for the month. In the morning our Selangor State Government will be celebrating Hari Malaysia with Menteri Besar and some guests from the East (Malaysia). In the evening, there is the launch of Saya Anak Bangsa Malaysia, at BlogHouse. What are you doing today to remember you are Malaysian?
Looking Beyond Race: Ethnic Minorities in Malaysia
Tricia Yeoh
Any right-thinking Malaysian should be increasingly disturbed by recent incidents that are rocking the multiethnic boat. These separate events coalesce in our minds into one thing: the nation is riddled with racialist individuals. Whilst Malaysia battles with numerous other problems, ethnic relations is considered the primary wild animal to tame, and rightly so, since without equality of opportunity what pride can one take in one’s birth country?
The feeling of helplessness and disquiet is of course not new. Yes, recently a cow head was stomped and spat on to protest the building of a temple in a Muslim-majority area (cows are sacred to the Hindus). Yes, certain newspapers allow opinion pieces that read, “nothing can stand in the way of ensuring only Malay and Muslim rights are defended”. While one does not want to dilute the severity and gravity of these, Malaysians should not be particularly shocked.
Official policy in Malaysia already sets the fertile ground upon which ethnocentrism can grow and flourish. This has been debated at length, and many view the country’s socio-economic policies as being unable to contribute constructively towards building a united nation. The unfettered overzealousness in ensuring the advancement of a particular ethnic group turned sour over the years, never mind that the Constitution actually emphasises the well-being of all ethnic groups equally. Our race-based political structure does not help either, and has in fact proven instrumental in promoting division.
The nation stands confused and bewildered in the wake of irrational attitudes towards race, a tragedy indeed as we celebrate 46 years of Malaysia’s formation on the 16th September 2009. Our frail attempts at national unity seem to have all but shattered. What has become of mutual respect, understanding and compassion towards the other, all of which form fundamental elements of every religion? What should we make of sloganeering 1Malaysia when with one hand we cradle the platitudes of various motherhood statements, and with the other we fan the flames of racist sentiment?
Without wanting to place labels once again on ethnic groups, since I would rather all consider ourselves Malaysian first, it seems necessary to highlight the ethos of ethnic minorities: How should we react amidst such crazed antics? There are multiple ways in which ethnic minorities in Malaysia could respond to the strange direction the country seems to be taking of late.
The first and most natural reaction against an onslaught – real or imagined – is to retreat into respective ethnic bases, stick our heads into our own little communities, never to return to interethnic life. Unfortunately, this happens more often than not. Ethnic minorities around the world have a general tendency to close in on themselves, creating sub-cultures that overemphasise their own value-systems – like the early Turkish settlers in Germany, for example. Similarly, the danger for the Chinese, Indians and other “immigrant races” in Malaysia is to huddle in their own little club-houses, speak their own languages, build their own schools and produce and read their own newspapers. It is difficult to lobby for equality when participation of these communities in public life lies only within its fringes at best. It is difficult to counter the exclusivist positions when we entrench ourselves in precisely those categories of “immigrant” in which others seek to confine us.
Again, one understands this instinctive reaction, especially given their justified grounds: they feel excluded from mainstream of socio-economic life and hence create smaller worlds they can fully belong to and claim as their own territory. However, harsh as it may sound, this sort of thinking impedes the development of a united Malaysia. It is perfectly acceptable for multiple language to flourish as mediums of education and commerce, and the diversity of literature, resources, and culture should be encouraged. But the promulgation of isolated societies, members of which never see the light of any other community’s day, is unhealthy at best.
The second possible option is to react violently, akin to the ancient law of “an eye for an eye, a tooth for a tooth”. This is obviously immature and mutually destructive. A cow’s head may have been used to upset Hindus, but no one has the right to retaliate by desecrating a pig’s head to insult Muslims – far from it! Without necessarily resorting to physical acts of ridiculous rudeness, however, we have developed subtler ways to point fingers at the other. For example, should a Chinese-language publication spout biased remarks, its justification for doing so would be, “The other side did it first!” This may be so, but where does it end? No one should disgrace themselves by descending to whatever vile levels they think others have sunk. If, by contrast, we were to take the opposite tack of responding to provocation with calm and deliberate reason, would we not at least take a step closer – however small that step might be – towards admitting that we each have the right to be different?
The third and wisest option is the only one available in paving the way forward. The same trend has been developing in recent years in different shapes under different banners: “Anak Bangsa Malaysia”, “Malaysian Malaysia”, and yes even “1Malaysia” (hypocritical as the implementation is under the current government). As long as we continue to consider ourselves separate and divergent, leaders will continue to treat us as such. Whilst cultural diversity should be supported, one’s identity should be primarily identified based on one’s citizenship, that is, in being Malaysian. Ethnic minorities, while being critical of biased affirmative action policies should rise up against their natural tendencies and be counted for their ability to be colour-blind.
This means more than just fuzzy ‘we are all the same’ feel-good pats on the back. It also means the willingness to support institutions of government; for Chinese, Indians and others to work in the civil service; to reform educational institutions with the view of eventually sending all our children to national schools in which children interact with all races; for vernacular newspapers to shed their mindsets of defending only their own communities. Most importantly, we must all step out of our comfort zones and make genuine friends from other communities. We must honestly desire to help those communities that are poverty-stricken, whether they are Malay, Kadazandusun, Indian, Orang Asli, Penan, or Chinese. And we must be able to speak honestly and openly about each other’s religion and cultures.
The danger of bigotry is that it often prompts an equally ugly reaction from the other side. Malaysians of all communities should not stoop to such levels, but instead rise up above the ‘tit for tat’ attitude that, if nothing else, is reminiscent of the insane zero-sum logic that has brought more harm than good to the world.
Furthermore, race is not as defining a factor as socio-economic status, income levels, and other demographics. Let us not fall under the sway of the ‘illusion of singular identity’, espoused by Amartya Sen in one of his books. Malaysians must be responsible for thinking and behaving as Malaysians, for the sake of a truly flourishing united nation.
Tricia Yeoh serves as Research Officer at the Selangor State Government.
Much has already been said about the death of the late Mr. Teoh Beng Hock, political aide to Selangor State Government Exco member YB Ean Yong, and I understand the great anger and sadness being expressed by the public to this effect. I do not know whether what I will share here will be of any use to anyone, but I would like to express my experience of the matter as a colleague of Teoh’s in the State Government (as an aide of the Menteri Besar) in the same Selangor administration. I was not close to Teoh, but being colleagues in the same building we were of course acquainted and I would see him at State events and press conferences.
Words cannot express the deep shock that many of the aides went through when news of Teoh’s death came through. It is no different for me. The fact there this young man, aged 30, was merely assisting in an investigation of the Malaysian Anti-Corruption Commission (MACC) as a witness and not a suspect, fell to his death at the same building the MACC is located reeked suspicious from the very start. Any one of us as aides could have been equally tantamount to the treatment received by Teoh of the MACC – although the facts of this have not been determined – and this has been a traumatic time for all of us.
Deeper than the trauma stirs a great, great anger that is ready to implode. The anger stems from the knowledge that Teoh’s death is a result of MACC’s treatment towards him during interrogations. Teoh was believed to have fallen to his death from the 14th floor of Plaza Masalam, where the MACC’s office was located. The official post-mortem report states that the cause of death was multiple injuries from a high fall. Whatever the reason for this fall – suicide or otherwise – it must be stated clearly that the MACC must be held responsible.
The MACC’s responsibility is to ensure that any case of corruption is investigated and the culprit revealed. The manner in which they acted here was most unbecoming of a Commission that is supposed to be the bastion of justice, transparency and governance. Instead, their actions shamefully display the very reversal of a commitment towards truth.
First, the case began with the mere speculation on someone’s blog that there were State Exco members involved in misallocation of funds. YB Ean Yong was one of the seven assemblymen being investigated, and the accusation in his particular case was that he had paid RM2400 for 1500 Malaysian flags used in Merdeka Day celebrations in 2008, without actually receiving them for the suppliers. The measly amount of RM2400 surely cannot justify the way in which Teoh was treated, interrogated from 6pm till 3.45am of the following day. Surely corruption cases involving millions of Ringgit are more worth the time and effort of the MACC, and not petty cases as this.
As such, even by the largest stretch of the imagination, that if this case was indeed one of corruption, it is absolutely clear that the MACC was overzealous and making a mountain out of a molehill – which in turn causes minds to question its political neutrality. If instructions were given to play up this case – and that of other assemblymen – then the independence of the MACC has all but disappeared. This incident is the final nail in its coffin, from the public’s point of view. It will be impossible for it to reclaim public trust and confidence from hereon.
Second, the manner of interrogations is also suspicious. Boon Hwa, a councillor from the Kajang town municipality, was questioned in the same case and shared at a press conference that the interrogations involved standing at attention for four hours in a row, without food or drink. Threats were made to beat him up, and mention of his family was made, should he not give the answers they wanted. He was jeered at, with humiliating calls of “Cina Bodoh!” shouted at his face – “Stupid Chinese”, an utter racist remark and itself the most shameful display of an institution of the MACC. This is a far cry from the 1Malaysia concept that the Prime Minister Najib Razak has attempted to introduce.
Although this is speculation, many wonder if Teoh was subject to similar treatment. Psychological and mental abuse that may have taken place is not the role of the MACC. It was said that Teoh was inexperienced in this regard, and being for the first time interrogated in an anti-corruption case, could have been shaken and traumatised. Although his lawyer and boss told him exactly what to do and what to say, his frailty may have caused his interrogators to draw greater strength from their imaginary power and muscle.
Third, it is unclear as to whether the MACC did indeed act according to the laws that govern them. I am not a lawyer and this should be clarified with detailed analysis. Whatever the jurisdiction of the MACC, any witness or suspect in a case should be allowed to have an accompanying lawyer. The length of time allowed for interrogation should not extend to the wee hours of the morning. The numbers of officers should be clearly specified, along with recordings of any statements made during the course of the interrogation done – both in audio and video format. If the MACC was acting outside of its legal powers, action must be taken immediately. Again, this is subject to legal analysis.
Fourth, the MACC was responsible for Teoh as he was being interviewed in their premises. Their current claim is that once interrogations ended at 3.45am, Teoh was allowed to return home but instead he requested to rest in their office. Except for someone who saw him at 6am, nobody else apparently saw him until his body was found at 1.30pm subsequently. MACC’s stand is that because he was released, they were no longer responsible for where he went and what he did.
The story seems strange because Teoh had his car parked at the basement of the building. Would it not make sense for him to have left as soon as possible? Even if he did want to rest at the office, his handphone would have been returned to him (since “interrogations were already over”), and some contact would have been established with his friends and family members, surely. However, no communication was made as far as has been reported to date.
The MACC would surely have monitored Teoh’s comings and goings. As a key witness that would warrant such thorough investigations through the night, surely his presence was important. Surely some record would have been noted, of his having officially left the building’s premises. Whatever the case, the response that nobody knew where he was – is weak and irresponsible.
Teoh was a quiet character who must have been thoroughly enthused about working in a new state administration. I cannot speak on his behalf, but the reason I have chosen to work in this Pakatan State government is because I want to contribute to a cause I believe in. To better socioeconomic policies in the view of fairness for the sake of the rakyat. I am sure Teoh was no different. Spurred on by the results of the March 8th General Elections, hope for a budding democracy had begun. Although the actual management and administration of the State has not been easy, nor without error, the struggle to create a better society is real.
As a young person, I resonate with his desire to contribute so willingly to this cause. His death cannot be in vain. Although it may spark fears amongst the young – and their parents – as to the grave political dangers of this working environment, I believe with a greater urgency and fervour that this is the right thing to do.
It can no longer be mere speculation that we as Malaysians are living in a system of darkness, corrupt and unfair practices. The treatment of a youthful, innocent man could be the same treatment given to any commoner on the street should he be hauled up by the MACC. What justice is available to an ordinary rakyat? No, the need to raise up a new generation of people to transform Malaysia to a nation of hope, justice, peace and good governance is even more necessary.
Along with many others, I call for a Royal Commission of Inquiry into the death of the late Teoh Beng Hock. The inquiry must be independent, transparent and conducted by individuals of the highest integrity. This has been a rare first political death of its kind, and should changes not be made immediately to the rotten system of Malaysia, the question looms dark in our minds: Who will fall prey as the next victim?
I was invited to speak at the Perdana Leadership Foundation’s Discourse Series. The title of the day was “The Role of the Judiciary, Executive, Legislative and Constitutional Monarchy in the Governing of Malaysia”.
Some people thought I was too oppositionist in bringing up Perak, but come on – there is NO way I could have addressed the audience on this subject without analysing the Perak fiasco. Seriously. And what has happened today has made me all the more adamant that the institutions must be strengthened and complete revamping and reform must take place before the same orchestrated madness of today is replicated elsewhere, or worse – at national level should it come to that stage.
Once the Executive takes into its own hands what it must at all costs achieve, and makes use of all other arms to fulfill its needs, thus spells the death of democracy.
The text of my speech is here. (I shall upload all my speeches of the last few months too – haven’t had time la, have been so busy with Selangor work).
“Restoring Institutional Strength and Separation of Powers”
Wednesday, 6th May 2009, Perdana Leadership Foundation 9th Discourse Series, Putrajaya
Tricia Yeoh
Salam sejahtera and good morning. I have been asked to share my thoughts with you on the role of the judiciary, executive, legislature and the constitutional monarchy in the governing of Malaysia. My co-panelists, both trained in the law, would no doubt present a complete and thorough legal framework, so I thought that I’d try to capture the sentiments being more urgently and widely expressed by many Malaysians. The viewpoint which you will be sharing with for the next few moments will be that of a person working in government presently, exposed to its systems and cultures, a keen political observer, and a young Malaysian serious about reflecting upon the country’s problems and trying to resolve them through key public policy reforms.
One cannot reflect upon the role of these institutions – the judiciary, executive, legislative and the monarchy – without first examining the political structure that was intended for the governing of Malaysia. Our country was one of those Commonwealth countries that was expected to and for a while held out the promise of blossoming into a mature democracy. For this reason, it is worth considering the challenges encountered by these institutions; how their roles have been shaped; or where they have not been reflected in their practice; and how they can be improved, in the process of truly gaining a full-fledged democracy in the medium to long run. The Reid Commission Report clearly demonstrated the difficulty of achieving a fine balance of interests between the different sizable racial communities that had to be accounted for within a constitutional government akin to the British Westminster model. But did our past leaders envisage the fruition of a democracy in our country?
Tunku Abdul Rahman on 16th September 1963, the day Malaysia was formed, said, “Let us always remember that the Malayan Union was formed after many difficulties during a long period of national Emergency, yet its multi-racial society emerged, endured and survived as a successful and progressive nation, a true democracy and an example to the world of harmony and tolerance.” Malaysia’s formation was complicated by a host of factors: citizenship, cultural heritage, the Emergency, ethnicity, religion and so on. Despite this, and at the end of it all, our achievement should have been a true and healthy democracy; one where we are debating about the finer points of the rule of law and separation of powers, and not whether it exists or not. The rule of law simply means that no one is above the law. Not you. Or the police. Or the judges. Or even the Prime Minister. And in some cases even royalty. Everyone of us are supposed to be equal before the law.
Unfettered powers of the executive
(First published in Malaysiakini on 8th April 2009. This was a speech delivered to the UKEC 6th annual conference in London).
Contrary to popular belief, I am not related to Michelle Yeoh, YTL or my former boss Michael Yeoh. I do not even come from a family of politicians. I am here because I simply happen to share the common ideals and principles that I hope many of you have and have acted upon them.
As introduced, I work at the Selangor state government with a team of young people, others like myself, and it is an honour for me to work and serve the state to implement policies and ideas in a concrete way.
It is of course an honour as well for me to join you at your sixth annual conference, more deeply so as a fellow Malaysian. The pleasure of being here, however, is somewhat marred by the disturbing crisis looming large back in our homeland. Perhaps it is a strange coincidence that you have timed a conference that confronts and discusses steps forward for Malaysia on the very weekend after the new prime minister has taken over the helm; and the very same weekend before three explosive by-elections are held, the results of which will stand as the litmus test for Najib Abdul Razak’s popularity and the new administration’s legitimacy.
More serious is the question posed to the panel today, on whether democracy is working well in Malaysia. I have to be honest – I stifled an immediate need to laugh when reading the question. This laugh stems from my utter amazement at the current administration’s complete disregard of the rule of law in recent political developments, without which a country effectively runs close to being a lawless state. If anything, Malaysians stand at a turning point in history, observing war being waged against democracy itself.
Democracy is of course a debatable and subjective concept, but the one I choose to take comes in the form of upholding key principles like social justice, the rule of law, separation of powers, equal rights and public consultation.
The Perak fiasco
Indeed, it has been recently pronounced by many that the Federal Constitution is dead. What happened in the Perak fiasco would warrant one pronouncing its state constitution as equally so. I will not discuss the reasons for which this happened, but the fundamentally wrong way in which it took place – not the ‘why’ but the ‘how’.
This was a case in which the fate of its state government hung precariously upon the shadowy negotiations of three individuals and the amount of cash being exchanged. A case in which the forced resignation of the menteri besar was unconstitutional, where the Perak constitution does not empower the Sultan of Perak to forcefully dismiss the menteri besar. Article 16(6) states that where a request for dissolution of the state assembly is refused by his highness, as a result of the menteri besar ceasing to command the confidence of the majority of the assemblypersons, the incumbent menteri besar has to tender the resignation of his executive council and the menteri besar is to be removed.
What is not clear – which is an assumption made by those in recognition of Zambry Abd Kadir as the new menteri besar today – is his highness’ jurisdiction to decide on his own accord that the incumbent menteri besar did not command the confidence of the majority of the assembly, even without a vote of no confidence. In the Sarawak case of Stephan Kalong Ningkam, a vote was necessary to determine that its chief minister actually did eventually command the confidence of the majority. Likewise, a vote of no confidence should have been conducted to finalise the status of the incumbent menteri besar, especially since one, speculation of money politics was rife and hence legitimacy of position as representative of their constituents dubious; two, the majority was ever so slight; and three, the assemblypersons in question were not even BN party members but merely ‘BN-friendly’, a position so vague that could easily have shifted around the very next day.
The descent into chaos was immediate: again, a constitutional crisis in which the separation of powers was clearly not adhered to. You had a situation where the Federal Reserve Unit blocked entrance into the state assembly although as an executive arm, it had no right to interfere into matters of the legislative. That said, the speaker’s position and role has not changed as of today. If the state assembly does not sit for a period of three months, it will be dissolved – and his highness would now have to call for fresh state elections.
The Perak case, combined with the situation last year where the Sultan of Terengganu dismissed the prime minister’s recommendation of a menteri besar preferring his own candidate, has thrown into public debate the role of the monarchy in Malaysia. More distinctly in the past week has been the question of the Yang di-Pertuan Agong’s appointment of the prime minister.
Nowhere in the Federal Constitution does it state that the president Umno immediately assumes the position as prime minister of Malaysia – this has only been a matter of practice and precedence.
In fact, the king has sole and absolute discretion in how he forms his judgment as to who in the Dewan Rakyat commands the confidence of the majority. Although he did decide to appoint the current prime minister, the possibility of his ability to do otherwise has triggered the question of just how strong a role the royal prerogative should play. The interpretation and practice of the prime minister’s responsibility to ‘advise’ the Agong is obscure.
Role of the monarchy
In fact, the Federal Constitution requires the Yang di-Pertuan Agong, on advice of the cabinet or minister, to consult with the Conference of Rulers on the appointment of members of the judiciary, the auditor-general, members of the Election Commission, Public Services Commission and education commission. Recent trends to reduce the role of the Conference of Rulers include the Court of Appeal’s decision in 2000 (in the matter of an oral application by Anwar Ibrahim to disqualify a judge of the Court of Appeal, 2000, 2 MLJ 481), that the Agong may consult the Conference of Rulers but does need its consent. However, note that even amongst the Malayan representatives the original intent was for the Conference of Rulers to play the role of constitutional consultees (Chin, 2008). Such conventions have been forgotten, more so after the 1993 Federal Constitution amendment which reduced the monarchy’s immunity further.
If the independence and sturdiness of each of society’s pillars characterise a democracy, then Malaysia fails miserably in that its executive has taken on an increasingly prominent position, overriding that of Parliament, the judiciary and the monarchy. The constitutional amendments in 1988 and subsequently over the years weakened these institutions whose powers were meant to keep the other in a situation of check and balance.
What happened in Perak was not necessarily proof of the monarchs’ strength but their unhealthy collusion with political individuals. The subversive political influence exercised by the Executive permeates all possible agencies, including the Police, Civil Service, Media, as well as apparently independent Commissions.
I refer here to the two most commonly spoken of: the Malaysian Anti-Corruption Commission and the Judicial Appointments Commission. Long-awaited, they were hurriedly passed in Parliament before then prime minister Abdullah Ahmad Badawi retired from office. The MACC differs from its predecessor in that its director-general now enjoys unprecedented independence similar to the attorney-general, auditor-general and judges.
Touted as amassing greater powers than before, it could lean both ways – either good or bad. However, given the bad past track record of leaders, for example here advisory board members are appointed by the Yang di-Pertuan Agong based on the prime minister’s advice, once again reflective of the executive’s strong influence being exerted. There are several committees that are supposed to keep them in check, such as the Anti-Corruption Advisory Board, Special Committee on Corruption, Complaints Committee, Operation Review Panel and the Corruption Consultation and Prevention Panel – but the unfortunate thing is they are all selected by government and not cross-party panels, which is more ideal.
Similarly, the Judicial Appointments Commission’s members are selected at the discretion of the prime minister. This is cause for concern as former politicians might be appointed at his will.
Although not foolproof, this is a step in the right direction, where for umpteen years the current legal system has been ridden with the lack of transparency and accountability in judicial appointments and the Executive’s interference in the judiciary. It is hoped that by providing some counsel, judges would be selected and promoted in a more transparent a manner. Neither of the two Commissions, of course, is placed under the jurisdiction of Parliament. How well either achieves its objectives depends on how violently the Executive pokes its nose into their affairs.
You see now that the problem of separation of powers in Malaysia – or the lack thereof – has led us down a slippery slope. The original Westminster model envisioned by the Reid Commission when formulating the Federal Constitution’s contents has failed miserably. Several factors have led to this situation, namely the historical need for the then Alliance to form a strong central administration, being Malaya’s first Government.
More realistically, the Emergency period from 1948 throughout the 1950s exacerbated the need to curtail freedoms in the form of the Sedition Act 1948, the Printing Presses Act 1948 and later the Internal Security Act (ISA) 1960.
What ‘national security’?
Consider this. Malaysia is one of the only countries in the world whose Constitution allows preventive detention without trial during times of peace. This has been said numerous times, but worth repeating that the ISA goes against the very fundamental human right to fair trial. The ISA provides for preventive detention without trial for two years, renewable indefinitely in subsequent two-year terms if the minister is “satisfied that the detention of the person is necessary to prevent [the detainee] from acting in a manner prejudicial to the security of [the country] or to the maintenance of essential services therein or to the economic life thereof [Article 8(1), ISA 1960].
Although during different premierships the ISA was used for very different purposes, the arbitrary manner of deciding on its application is too highly dependent on the individual personality of the prime minister. We cannot rely on the particular PM’s “mood of the day” or personal character. For example, while Tun Ismail maintained that the ISA would not conflict with democracy and the rule of law, the same cannot be said of the way in which Dr Mahathir flexed his muscle through the same Act.
We cannot rely on the goodwill of a leader, but instead on a system to keep all in check, no matter his character. The argument often used is that of “national security”, which seems to encompass a broad ambit with anything remotely affecting political, social, economic, and developmental stability. While it is true that some level of measure is necessary to ensure stability in a multiracial country such as ours, it is only with an equal respect for and genuine practice of good governance and the upholding of the rule of law that this measure is evenly applied.
This has unfortunately not been the case in Malaysia. There are exceptional situations, of course, in which there exists the very real threat of terrorism at the hand of an individual or a group, whose actions need to be curtailed immediately. In such circumstances, there would have to be solid and reliable intelligence and evidence gathered, without any other legal option. Detainees would also have to be subject to adherence of international human rights laws, without torture, humiliation or degrading treatment.
10,662 people have been arrested under the ISA in the past 44 years, with 12 executed between 1984 and 1993. There are 27 detainees now, minus the thirteen to be released tomorrow. Last year saw arrests of journalist Tan Hoon Cheng “for her own protection”, Member of Parliament Teresa Kok for an offence she did not commit, and blogger Raja Petra Kamarudin for offences he was already being charged for under the Sedition Act. How the ISA is deciphered is subjective, its use too easily tied with ulterior motives. It has been much too easily abused and misused for the sake of securing even greater power to those already in positions of authority. There are no two ways about it: the ISA must be repealed.
Living in precarious times
Malaysia’s National Human Rights Commission, Suhakam, has also recommended its repeal in the long term, calling for judicial safeguards and checks and balances to prevent abuse of fundamental freedoms and undermine legitimate dissent. As it is, the nation is invariably subject to such abuses, especially so since we are still technically under Emergency Rule because none of the proclamations have been revoked.
Yesterday the new prime minister was sworn in. Today is effectively his first day in Office. We are living in precarious times that warrant great leadership. That his has started with the lifting of the banned newspapers and the release of 13 ISA detainees is a good sign, but this does not take away from systemic flaws. Other ridiculous Executive decisions still exist, like barring all Pakatan representatives from entering any national school in Selangor; practice of the Sedition Act, Official Secrets Act, University and University Colleges Act, treatment of refugees, abuse of Police powers, non-independence of the Judiciary – all these do not, in my opinion, augur well for the trend of things to follow. It frustrates me that we can stand for gross unethical and unconstitutional acts, yet continue to call Malaysia a democracy.
I believe that the Malaya, and Malaysia, envisaged by her founding fathers is a far, far cry from where we are today. The flaw of the Federal Constitution is that its crafters assumed that its future leaders would remain gentlemen about this concept of “democracy” and certainly did not predict the rise of authoritarianism that we have experienced in the form of Mahathir. Certain fundamental principles must be returned to if we want to restore our credibility, reaching beyond our current limited heights. This mode of crisis can leave many in despair, but it can also compel us to drive ourselves even harder against the tide of unfettered displays of power and arrogance. Blatant abuse of Executive position must stop. Upholding the rule of law, separation of powers, limited government, freedoms of the people, and the rightful understanding of the role each institution plays are basic building blocks of any nation.
Friends, we have to acknowledge that we are in crisis mode and at a crossroads. You are all here as young, 20 something year olds, intellectual and articulate. You are here for a reason, and I believe you share many of the ideals I have spoken about. We also recognise that the system we’ve had simply does not work. We must use this opportunity to reverse past wrongs and reorient new trends, policies, plans for the future of Malaysia – for your generation, and that of your children. If you are not idealistic now, then when? If you don’t lay out an alternative plan for the country now, then when?
We only have this second chance to get the equation for a democracy right.
For all our sakes, and for those yet to come, let’s get it right this time round. Thank You.
The weekend was a busy one, and one of the mini-Everests we achieved was having an inaugural dialogue session between the Selangor Menteri Besar and the Orang Asli community in Selangor. I personally found it incredibly rewarding to be present at this historic occasion.
The Orang Asli themselves were extremely excited, since it was the very first time ever they would be having an official dialogue with the Selangor State Government represented by the Menteri Besar. They were mainly Temuan, but other communities also showed up from far and wide. All in all there were about more than 500 Orang Asli seated in the hall, in Bukit Lanjan.
It was quite a beautiful sight, having all of them with their “lilitan” on their hands (a woven headpiece).
They presented a brief history and background of the Orang Asli to the MB and the other officials present, and then some speeches and thereafter a question and answer session.
The main demands of Orang Asli are on land rights. They have been extremely frustrated over the fact that their rights to land have not been sufficiently recognised. There is much contention over this issue right now, and various takes of it. To my mind, Orang Asli land has to be recognised and gazetted – and proper land titles given to them who live atop it. Specific demarcations have to be done, so they are not robbed of these rights in the future when and if some commercial developer comes up to take it away from them.
One of the commitments is to now expedite the process of dealing with the stalemate of Orang Asli land in Selangor. One of the great things the Pakatan Rakyat government in Perak did was to form an Orang Asli Taskforce, headed and led by Orang Asli themselves. They would then deal with these problems and report it to the Exco. This was applauded by many.
Similarly, I think we will see things moving along in Selangor. The Bernama news report quoted the MB as saying that the existing Selangor Land Task Force would be meeting with the Orang Asli Taskforce soonest possible. Yes, I am looking forward very much to the formation of an OA Land Taskforce for Selangor.
This would work wonders in terms of moving forward and determine once and for all the problems that have for far too long plagued our very own native community of Selangor. They have lived here for hundreds of years, and imagine their dignity and honour being taken away from them systematically over the last 50 years. Only now is their maruah being returned to them.
I was deeply moved, listening to the humble pleas of the representatives from 7 districts in Selangor (Hulu Selangor, Kuala Selangor, etc.) – I suppose I’ll be poring over these over the next weeks! 🙂
It is interesting to observe the different takes that the bloggers took, on the recent “Dialogue with the Menteri Besar” on Sunday evening. You can view their reports of the event to get a holistic picture of what happened and was said, so visit the blogs of Nat Tan, Datuk Kadir Jasin, Rockys Bru, and others who were present but haven’t blogged about it yet included Haris Ibrahim, Khoo Kay Peng, Nuraina Samad, Malaysia Waves (through his representative), Dina Zaman, the Loyarburok team, Patrick Teoh and Fahmi Fahdzil. There was a whole range of others who were invited, or who will be invited in the next round – but we had a good group of people to discuss the issues of Selangor with.
Certain quotes have been taken from the meeting, and they have been discussed in the comments sections – quite interesting as well to observe these.
It was a fairly honest and critical session, where the bloggers stated in no uncertain terms their grouses and keen interpretations of their take of the Selangor government a year after. They pulled no punches in stating the facts to their minds. Some raised the issue of communication, which in a sense should push us to ensuring the messages are reaching the ground level people. Especially when there are policies and plans in existence but word is not getting out.
The purpose of the session – as was mentioned – was to acknowledge the important role that blogs are increasingly playing in shaping opinions, reaching the numbers of people and communicating with them in a fluid way, bloggers are becoming the “ears and eyes” of the people, a conscience, independent watchdogs and so on. Whether in praise or critical, blogs in Malaysia can change how people view matters of public life. Continual engagement is necessary.
It was held in a rather informal atmosphere, where people were able to speak their minds freely – and yet, all in a very cordial setting. This is the kind of dialogue I think is worth having, and should continue. In an environment where people feel they can give feedback – whether for the purposes of being constructive or not is a different matter altogether – and know that their responses are being taken into consideration seriously.
All the feedback provided much food for thought, and these are all scribbled into my steadily-filling-up notebook (it’s halfway through and I’ve only been here a month and a half!) (and it’s a thick book) – but I am very glad that we had this session with the bloggers. As someone mentioned, it could have happened sooner, but a hundred-mile journey always begins with the first step.
Following on from this, I can see possible outcomes from the session branching out in multiple manners. Let’s see what can be done, and you’re welcome to provide feedback here also on what you think!
My most recent activities are found on my LinkedIn page here.
