Archive for October, 2011

Malaysia in the Era of Globalization # 87

Sunday, October 30th, 2011

Chapter 10: Freedom, Justice, and the Law

Personal Liberty in Malaysia –
Chilling Effects of Repressive Laws like ISA

An editor of a Malaysian professional publication invited me to be its regular contributor. I readily agreed, and aware of the local psyche and ambience, purposely submitted a rather bland first piece. He readily published it but chided me for being too cautious as Malaysia “has changed” since I left the country. Encouraged, my next piece was more critical, and sure enough, his earlier encouragement notwithstanding, he sheepishly told me that his board had vetoed my submission! Thus ended my brief career as a columnist for that outfit! I later submitted the same piece to a mainstream paper (owned by the ruling party) and much to my surprise, it was published unchanged. I later sent the editor of the first publication the published copy; he felt rather small. The truth was, the mainstream paper had a new editor and I decided to test his professionalism and independence.

In another episode I submitted sample chapters of my first book (choosing carefully the least critical ones) to an establishment Malaysian publisher. He was enthralled and added that he had published a number of books by members of the ruling elite and that he looked forward to publishing mine as it would be a pleasant departure from the usual staple. But when I submitted my entire manuscript which contains chapters much more critical, he demurred. Receiving publishers’ rejection letters is not a novel phenomenon with me, but what startled me was his apologia. He complimented me ad nauseam, for being “brave” and “forthright,” but he was afraid of the backlash as he did considerable amount of business with the government. I also approached other Malaysian publishers and printers, but the refrain was always the same. They had too much business with the government and its myriad companies to risk publishing my book. It would have been better if they had simply told me that my book was not up to their standard. Or perhaps that was their soft Asian way to “save face” and spare me any embarrassment! My book was finally published in America and again, thanks to the Internet and globalization, my publisher had no difficulty marketing it not only in Malaysia but also worldwide. Had I used a Malaysian publisher, my book would not have had global exposure.

I relate these incidents to illustrate the chilling effects of these intrusive rules and restrictive regulations. People exercise self-censorship and excessive caution for fear of official reprisal. Instead of expanding the envelope they stick to the tried-and-true. But progress depends on citizens daring to explore the edges and beyond.

These restrictive laws also foster the kind of behavior that is crudely referred to as “sucking up.” This is an absolute anathema to progress. Subordinates and citizens would then choose a decision or path of action that they think would please those in power. The results can be disastrous as exemplified by the following recent examples.

It is an open secret that Malays are preferentially admitted to local universities while non-Malays with comparable or even far superior grades are routinely rejected. None deny this racist practice and indeed many in the senior levels of the establishment go to great length and contorted logic to justify what is clearly an unacceptable practice. But because there was no public outcry and more significantly, lack of open denunciation by the leaders, the practice persisted and indeed spread.

In late 2001 it was revealed that such obnoxious practices are also being done at the primary school level. That is, students are academically streamed based on their race even at such a tender age. When it was first revealed, the education minister denied, but later in the face of more evidence, he admitted it occurred but was an isolated incident and thus not worthy of his attention. But when the teachers’ union exposed that it was indeed a rampant practice, the minister went through great hoops to justify it! Taking their cue from the minister, bureaucrats began repeating the same mantra – “in the national interest” – to justify their actions. Only when the prime minister and his deputy condemned the practice did everyone realize how institutionalized racism is in the education ministry specifically, and the government generally. This sordid affair occurred because those underlings thought they were doing what their leaders wanted them to do. “Sucking up to the powerful” wrapped as the “national policy.”

To be fair, the minister did finally convene a committee of outside educators to examine the allegations. Chaired by a retired academic, the committee refuted the charges, claiming that there was no intent to discriminate. A further controversy ensued following the release of that report, as the committee made public only an executive summary, not its methodology and full findings.

That primary school debacle came in the heels of another major scandal, this one at the other polar end of the education spectrum involving the Certificate for Law Practice (CLP) examination. The CLP is required of all law graduates of private colleges; those from public law schools are exempted. To appreciate the unfolding drama, one has to understand the political background. Public law faculties in Malaysia, “in the national interest” are the near exclusive preserve of Bumiputras, while the private ones cater to non-Bumiputras. One does not have to be particularly astute to sense the poisonous race potential of the CLP mess.

It started out rather routinely: the tests’ questions were leaked. The results of the investigations were also routinely Malaysian: some minor clerks were arrested. But from there things unraveled very quickly. It turned out that such leaks had been going on for years! But the greatest bombshell was that the released scores were not the same as what the candidates had earned from their examiners.

The scores had been tampered, and that this too had been standard practice for years. This brought forth an outpouring of outrage from many, including Law Minister Rais Yatim. The upshot was that the director was suspended. No further details were forthcoming; the man chose to keep quiet.

In the flurry of letters to Malaysiakini (the mainstream media saw fit not to cover the issue extensively), it was revealed that the director was a former associate dean of MARA law school (a public and exclusively Malay institution) and he was chosen at a time when those MARA law students had to sit for the CLP. And they were not doing too well; thus the insidious practice probably began then. Today those MARA students do not need to sit for the CLP, but old habits die hard. When the truth finally emerges I am sure that the misguided soul thought that what he was doing, tampering with the CLP, was also “in the national interest.” To imagine that hundreds of Malay would-be lawyers at MARA were under his tutelage boggles the imagination!

Malaysia’s many restrictive laws have another more corrosive effect on society. They discourage healthy public debates on important issues. Indeed certain topics are deemed “sensitive” and beyond the pale of discussion. The leaders have decided, in their wisdom, no further new inquiry or insights are needed on such important issues. They are deemed settled. No more discussion!

This mindset reminds me of the mentality of Muslim scholars and leaders of the 10th Century when they decided that everything were deemed settled in Islam and that no new inquiries were needed. Today, Malaysians too have their own secular or political “closure of the gate of Ijtihad (rational discourse).” The effect on the nation of this stricture will be equally destructive.

The issues deemed sensitive include among others, the Malay language, special privileges, and the status of the sultans. With time the list will surely expand. Anyone breaching such prohibitions is subject to the dreaded ISA or the equally feared Sedition Act. Many scholars, politicians, and writers have met this fate. Even more startling, such gross violations of the basic rights of the citizens evoke minimal or no outrage from the general public.

Malaysian leaders view public discourses as dangerous. The ghost of the 1969 savage race riot still haunts them. They still view Malaysians a generation later as being dumb and easily swayed by emotional and chauvinistic exhortations of opportunistic politicians. Unfortunately today many Malaysians, especially Malays, still demonstrate this juvenile tendency. The 1998 ugly demonstrations over the firing of former Deputy Prime Minister Anwar Ibrahim merely confirmed the worse suspicion of leaders like Mahathir that Malaysians cannot act rationally or discuss their differences in a civil manner.

This leads to a “Catch 22” situation. Unless Malaysians are trained or encouraged to have healthy public discussions, they will never learn to tolerate dissenting opinions and have civil disagreements. Learning to disagree agreeably is an art, and Malaysians must be trained and prepared for this difficult skill.

Foreign visitors to America are always impressed with and surprised at how civil American political leaders are toward each other. In the Senate, a flaming left wing liberal like Edward Kennedy could cosponsor legislative bills with an archconservative right wing Orrin Hatch. The two may view the world very differently; nonetheless they can still work together for the good of the nation. Indeed the two actually admire and hold each other in high personal regard. While they may profoundly disagree with each other politically, their private and public exchanges have always been civil and decorous. No resorting to name calling.

The Republican and very conservative President Reagan used to invite Tip O’Neill, the very liberal Democrat Speaker of the House of Representatives, to the White House especially after some particularly contentious congressional debates for an evening of drinks and cigar smoking. Such amiable personal gestures go a long way. More significantly, such very public displays of civility are not lost on the general populace. This of course has not always been the case in America. There was time when there had been actual open brawls and gun duels in Congress.

Malaysia during Tunku’s time was remarkable for the personal amiability and personal rapport among its various leaders. The Tunku made it a habit after the opening of parliament for example, of having a social get together at his residence for all members of parliament so they could get to know each other socially and outside the usual context of party politics. The aristocratic and worldly Tunku had very warm personal relationships with the socialist Tan Chee Koon as well as the leaders of PAS. It is to be noted that while Tunku was in his personal behaviors less than a pious Muslim (he admitted as much in his personal writings), nonetheless none of PAS leaders ever called him a kafir. Today PAS leaders callously labeled Mahathir as “Mahafiraun” (evil Pharaoh) and other epithets. PAS followers of course take their cue from their leaders. Mahathir too is equal to the task in return, calling PAS leaders and followers simpletons and backward.

As the result of this coarsening of public discourse, Malaysians have difficulty tolerating differences of opinions among themselves. This is particularly true among Malays. Malays cannot seem to disagree with each other either in political or religious views without imputing ugly motives. This state of affairs will continue as long as Malaysians are denied the opportunities to express their disagreements in the appropriate channels without fear. This trend, uncorrected, will only lead to further polarization and division.

Perversely, the nation’s leaders implicitly encourage this. They would prefer that the citizens be docile and passive followers and leave the decision making to the leaders. The assumption is that they and only they have the exclusive wisdom as to what is good for the country. This is definitely not a recipe for progress.

It is a tribute to the bravery and ingenuity of Malaysians that despite such intrusive and highly restrictive rules, they still manage to express themselves and circumvent those barriers. The government and the ruling party may control the mainstream media, so committed citizens created their own news outlets. When the government denied Harakah, the daily publication of PAS, from expanding because it was attracting an increasing number of readers, its publishers turned to the Internet.

Similarly, Steven Gans together with other committed and independent-minded journalists, fed up with the self-censorship of their editors at the traditional papers, started the Internet daily, Malaysiakini.com to provide an alternative to the government-controlled media. It is a reflection of the hunger Malaysians have for reliable and trustworthy news that within a year, Malaysiakini was getting more daily hits than the established papers. Malaysiakini’s success is also an indicator of the citizens’ distrust of the mainstream media. Indeed newspapers controlled by the ruling parties saw their circulation substantially reduced. In addition to providing an independent source of news, Malaysiakini is also performing a vital public service by providing an avenue for such refreshing new writers as Amir Muhammad and Hishamuddin Rais. Amir was a regular contributor to the establishment newspapers, until his editors mangled his essays beyond recognition.

Another brave soul deserving much praise is the political writer Syed Hussein Alattas, or Pak Habib, as his myriad readers and fans know him. When established publishers would not touch his books, he started his own publishing company. He has, in his words, “written more books than the average Malaysian professor has ever read!” His power and influence is such that former Deputy Prime Minister Musa Hitam blamed (credited?) him for his (Musa’s) fall from power. When Pak Habib writes, observes Asiaweek’s Roger Mitton, Malaysian politicians tremble.

I cannot help imagining how many more writers and talents out there that are being suppressed by Malaysia’s many oppressive rules. The flowering of arts and literature in the West is precisely because of the freedom their citizens enjoy. Malaysia will never see a similar renaissance if its citizens are kept on a very tight leash.

Next: The Judiciary: Justice in Jeopardy

Malaysia in the Era of Globalization #86

Sunday, October 23rd, 2011

Chapter 10: Freedom, Justice, and the Law

Personal Liberty in Malaysia – The Abomination That is the ISA

To me the ISA is an abomination. If indeed the Act is for the protection of society, as its supporters suggest, then it has failed miserably. ISA did not prevent the May 1969 tragedy, the 1984 Memali massacre, or more recently, the equally deadly Kampong Medan melee.

Surprisingly, the government chose not to use this powerful statute to arrest members of the Al Maunah group involved in the deadly arms heist in 2000 of the army camp in Grik, Perak. Instead the state charged them with waging war against the King. Surely such a crime is the ultimate threat to peace. If there is one situation where the ISA would have been appropriate, this is it. But the government opted for an open trial where its evidence was subjected to cross-examination and public display. There was no indication that the nation’s security and safety were compromised by the subsequent open trial.

If the Al Maunah members could be apprehended and successfully prosecuted using statutes other than the ISA, I see no compelling reason why those presently detained under the Act could not be treated in a similar manner. If, as has been intimated, the ISA detainees were bent on overthrowing the legally elected government of Malaysia through violent street demonstrations, charge them with inciting a riot. Get the evidences out in the open so the public could scrutinize them. Reveal the evil intent of these perpetrators.

ISA is not meant to be a substitute for incompetent prosecutors or inept police investigations. Truth is, the ISA is presently being used not to protect the public but as a crude weapon to coerce the government’s increasingly effective critics. Distressingly, the law is also being used to silence political adversaries as well as scholars who dare to voice their dissent.

Taking away a citizen’s freedom without due process is a serious matter. It is disgraceful to read that in the rounds of arrests in 2001, the honorable home minister (and also deputy prime minister) Abdullah Badawi had delegated such enormous powers to his lowly bureaucrats. I would have thought that as the minister in charge, he would have given such decisions the gravity and solemnity they rightly deserve. To hear him say that he was in effect “out of the loop” is simply unacceptable. Surely he must have had some evidence of the dangers posed by these individuals for him to order their detention. Thus once they were detained, he should be intensely interested in the details of their supposedly treacherous plot. Were there dangerous weapons stashed away, and was this part of a larger conspiracy, possibly with foreign involvement? Had the interrogations revealed a more serious threat, the minister would want that information quickly so appropriate preemptive measures could be taken. By waiting passively for a report from his subordinates, the minister wasted precious time. Besides, to treat such decisions casually goes beyond simple incompetence. It is a flagrant dereliction of ministerial duty, bordering on criminality.

Abdullah Badawi’s remark reflects, at best, a flippancy that is grossly inappropriate; at worse, a callous and sinister mindset. These are our fellow citizens whose freedoms are being violated. He acts as if such important decisions are not worthy of his personal attention and deliberation.

I would have been comforted had Abdullah said that he was indeed following the situation closely and that jailing someone without trial was a decision he took with a heavy heart, but due to the sensitive nature of the investigations, he was unable to divulge the details. I would still oppose his decision but at least I would know that he had discharged his ministerial duty diligently and that he had not used that immense power arbitrarily and capriciously. Or worse, delegated that awesome authority to his underlings.

As can be seen with the episode on the senseless beating of Anwar Ibrahim while in police custody, it takes only one overzealous officer to humiliate the entire nation. I expect our government ministers to be chief executives of their agency and be on top of matters under their authority. Abdullah Badawi, if he was truly unaware of the circumstances of the arrests, behaved more like a symbolic sultan rather than as an engaged executive. If this pattern of behavior portends his future performance as prime minister, Malaysians ought to be worried.

Like the frightened and weakened nobility at the time of the French Revolution, today’s Malaysian political nobles are using the ISA as a carte blanche to browbeat the masses. Malaysians today are in the worst possible position: Having a bad law (ISA) administered by an inept minister.

The government had another round of arrests under the ISA of suspected extremist Muslims following the 9-11 attacks. Unlike previous roundups, this time the government was spared any criticism from the West. Indeed Law Minister Rais Yatim, on a visit to Washington, DC, in May 2002, crowed that the US Attorney General was highly supportive of Malaysia’s ISA! It took the American embassy in Kuala Lumpur days before it denied such an endorsement. And it was done by a very junior embassy official. Such a low-key response!

Malaysian officials who were previously so dismissive of American official and public opinions are now suddenly eagerly lapping up any praise from America! I do not know who are being more hypocritical—the Americans or the Malaysians? Obviously to the Americans, flagrant abuses of basic human rights and due process are fine as long as the targets are presumed enemies of the West.

Criticisms of the ISA aside, there are legitimate security issues facing the country that must be addressed. Can this be done adequately without the ISA? Absolutely! The successful prosecution of the Al-Maunah group sans the ISA is one ready example. Granted the police and prosecution had to work hard to prove their case, and well they should.

Another argument favored by the Act’s apologists is that such laws are needed in a multiracial society to prevent those who would incite racial hatred. This is a valid concern, but it can be addressed using far less draconian measures. America has its “hate crime” laws where if a crime is motivated by racial hatred, it carries a substantially more severe penalty. Further, the victims of such crimes could sue their aggressors for civil damages and or violations of their civil rights, the latter carrying a much stiffer remedy. Similarly there could be “no bail” provision for such crimes. There are several viable options short of the drastic ISA.

Another defense of the ISA (and also the prohibition against public protests and rallies) is that Malaysians are fed up with unruly demonstrations and the resulting disruptions to traffic and businesses. Again here there could be provisions whereby those who plan such protests must carry adequate insurance in case of accidents or property damages. Such “event insurances” are common and mandatory in America. Having such insurance as a prerequisite would ensure that the organizers take extraordinary precautions to prevent their demonstrations from getting out of control. If they lose control of their followers they would have to foot a significantly higher premium the next time around.

A more problematic contention is this. The ISA has been a major issue in almost all general elections, with the opposition parties advocating its repeal and the ruling party (Barisan Nasional – BN) defending it. Yet BN keeps wining. But it would be a mistake to read much into this beyond saying that the issue does not resonate with the electorate.

In truth Malaysians do not support the ISA; they merely tolerate it. Electorates do not consider the ISA reason enough to boot the ruling party out.

One of the tragic consequences of the ISA is that its victims are not allowed to contact their families or attorneys. Their families are kept in the dark of where their loved ones are being detained and for how long. Nor are their charges and evidences specified. As has been amply demonstrated by Abdullah Badawi, the current minister in charge, such awesome powers are routinely delegated to minor officials.

Apart from its impact on the victims, the Act carries a far greater and deeper chilling effect on all Malaysians. Much like the barbwire fence would be a constant ugly reminder keeping the animals away from the edges for fear from being entangled, Malaysians are forced to behave extra cautiously. Citizens internalize self-censorship and keep to the narrow and safe. Any new initiative is stifled for fear of offending the authorities. New ideas are evaluated not on whether they will work, but how the authorities would perceive them. How many times have one heard officials say, “It’s not government policy!” And with that robotic response, everything is settled. Case closed! Everyone is scared of running afoul of those in power.

Next: Chilling Effects of Repressive Laws like ISA

Malaysia in the Era of Globalization #85

Sunday, October 16th, 2011

Chapter 10: Freedom, Justice, and the Law

Personal Liberty in Malaysia

Freedom is not absolute. In the West where personal freedom is held in the highest esteem, there are still definable limits. Freedom of speech, in the words of an American jurist, does not include the freedom to yell “Fire!” in a crowded theatre, unless of course there is a fire. America has enshrined in its constitution the Bill of Rights with the specific purpose of protecting the civil liberties of its citizens. Among its provisions are the freedoms of speech, religion, and peaceful assembly, together with the rights of due process. These statutes notwithstanding, they did not protect Japanese Americans from being forcefully relocated and incarcerated during World War II, and more recently, the detention of thousands of Arab-Americans following the 9/11 attacks. Today the injustices perpetrated on those Japanese-Americans are widely acknowledged, but significantly, the Supreme Court decision affirming the legality of that mass detention has yet to be overturned.

There will always be limits to freedom; the pertinent question is where those lines are drawn and the role they play in the ordinary lives of the citizens. An analogy will help clarify my point.

Visiting San Diego Zoo I was impressed to see how free the African antelopes were on their little man-made island surrounded by a narrow strip of shallow moat. The animals could easily jump over that barrier and escape. The attendant explained that the moat is a natural barrier (limit) and that the animals felt safe behind it. Indeed they seemed content, munching close to the very edge without ever attempting to jump over. Had they been enclosed behind a high wire fence, the ground near the fence would be barren with the animals pacing to look for an escape route. The moat serves as a limiting boundary but unlike the fence, it does not interfere with the daily lives of the animals. Indeed the animals behave as if there is no boundary even though their movements were limited.

Limits on human freedom can be viewed likewise. In America there are definite limits but they are more like the moat; the citizens are hardly aware of them. They are not intrusive. Executive powers to establish military tribunals for example, are definite boundaries and gross infringements on the citizens’ freedom. Similarly Canada has its War Powers Act that gives its prime minister as sweeping a power as Malaysia’s ISA. Indeed the War Powers Act was used in 1970 by no less than the libertarian Prime Minister Pierre Trudeau. Because these statutes are rarely invoked except in national emergencies, citizens do not feel constrained by them.

There are other less intrusive but no less potent restraints. I may own private property in California but I cannot even pave my driveway without first getting a permit from the county. A colleague had long dreamed of building his retirement home in the countryside. Unfortunately the county discovered a rare specie of salamander inhabiting his land, thus he could not build where he wanted to! A neighbor had a ranch raising pony horses, but an accident involving another neighbor’s child resulted in a messy lawsuit that ultimately ended with his getting rid of his beloved animals. I may be a trained and licensed surgeon, but I cannot practice my profession unless I carry adequate medical malpractice insurance. If I cannot afford or find one, then I cannot practice. Thus my freedom to practice my profession is infringed by and dependent on some insurance underwriters.

A more dramatic example would be the constraints American liability laws have on businesses. Many huge and otherwise successful firms have been forced into bankruptcy because of massive liability claims on their products. Manville Corporation was done in by the avalanche of asbestos lawsuits, and Dow Corning over its silicon implants. There is in America at present a massive redistribution of wealth through the tort system, with the bulk of that bounty ending up in the pockets of plaintiffs’ lawyers. A major concern of the present Bush administration is to rein in these legal robberies. The battle is severely handicapped because these super rich lawyers are also the wealthiest and most powerful political contributors and lobbyists.

These tort restrictions are real and they affect the daily lives of all citizens but somehow they do not appear as ominous or threatening as the rigid rules of a totalitarian state. They are like the moat in the zoo. Unlike America, Malaysia does not have a moat, instead ugly and menacing metaphorical barbwire fences. They announce their limits crudely and in no uncertain terms. Challenge them at your own risk! As such they are much more intimidating and affect individual behaviors much more profoundly.

Malaysia has many such highly intrusive rules, ranging from the Printing Press Act to the Universities Act. But the mother of all restrictive laws is its infamous Internal Security Act (ISA).

The ISA, with its provision for preventive detention without trial, is meant to protect the stability and security of Malaysia from subversive elements. It is a legacy of colonial rule, and in its original incarnation was meant to fight the communist insurgency in the 1950s. Since then it has been “strengthened” (made more intrusive) despite the fact that the country no longer faces any communist or subversive threat. Originally the orders of the minister were subject to court review; now that protection is gone. Detainees can appeal to the King, but the same minister also advises the monarch. Some checks and balances! In effect the minister’s power to incarcerate a citizen is absolute.

Malaysians tolerate the ISA partly because they have seen how quickly society’s stability can be easily disrupted, with disastrous consequences. One merely has to look at Indonesia and Sri Lanka to be reminded of this grim reality. Better that we jail a few, ISA apologists argue, if that prevents Malaysia from degenerating into another Bosnia.

The genius of the American system is its diffusion of powers and the delicate checks and balances. Despite that, egregious abuses do occur. The Watergate scandal of the 1970’s involving senior Nixon administration officials was perhaps the most pervasive and disturbing. More recently, the coziness of the FBI and the White House resulted in confidential files of many Americans being surreptitiously viewed by President Clinton’s political operatives.

As long as humans wield power, there will be abuses: hence the importance of checks and balances. The process must also be transparent, with adequate and effective review mechanisms. The more awesome the power, the more we must have meaningful oversight. That the decision of a mere minister is not subject to judicial review is the most menacing aspect of the ISA.

Next: The Abomination That is the ISA

Adopt Zakat, Not Hudud

Sunday, October 9th, 2011

Adopt Zakat, Not Hudud
M. Bakri Musa

Malay politicians fall all over themselves in advocating hudud, the Islamic penal laws. That is less an expression of their commitment to Islam, more blatant pandering to Muslim voters.

If these leaders are truly committed to advancing the cause of Islam, there is a more productive strategy: make zakat mandatory. Being one of the pillars of our faith, zakat is more defining of Islam. It is even ahead of performing the Hajj. Adopting zakat would bring the country closer to an Islamic state symbolically and operationally, certainly much more so than implementing hudud.

Creatively managed, zakat could be a formidable force for economic and social development; it would also highlight what is right about Islam. Currently in Malaysia and in many Muslim countries, mobilizing zakat remains only a potential. As the Halal Journal noted, “…[I]n the context of the Malaysian economy, zakat has not played a significant role ….” There is also a dearth of economic research on zakat. The recently convened United Malay Economic Action Council, presumably comprising luminaries in commerce and economics, has not even explored the issue.

Zakat is positive, charitable and “do good” aimed at alleviating human suffering; hudud is punitive, barbaric, and vengeful, aimed at maiming the human body and spirit. Zakat expresses the merciful and benevolent aspects of Islam; hudud conjures nothing but sadistic and repulsive images.

The most frequently invoked phrase in Islam is, Bis Millah Hir Rahman Nir Rahim (In the name of Allah, Most Beneficent, Most Merciful!). Zakat resonates more with these two pristine qualities of Allah (beneficent and merciful); hudud is the antithesis.


Practical Reasons for Mandating Zakat

A more pragmatic reason for mandating zakat is that as Islam is under state jurisdiction, the revenue would accrue to the state, in effect be a new tax thus enhancing states’ authority. A jurisdiction with no authority to tax has little power. With our federal system, states have little taxation power except for land tax and a few miscellaneous small-ticket items. States are thus dependent on the central government. Where the federal and state governments are from different parties as with Kelantan, the state would be at the mercy of the federal government. Zakat would change the fiscal and thus political dynamics in favor of the state.

One snag is that states are ill equipped to collect taxes. This could be solved by contracting with the federal Inland Revenue Service to collect zakat. That should pose minimal extra administrative costs as the IRS is already collecting income and other taxes. Many Canadian provinces have such an agreement with their central government. Such a scheme would also coordinate the two systems especially considering that zakat is treated as a tax credit. Even in secular America zakat is tax deductible when given to a registered charitable entity.

Zakat Disbursement

States would have to enact legislations consonant with the Koran and hadith on the disbursement of those funds, as well as the penalties for failure to pay. The penalties should be on par with failing to pay income tax. At the very least those in arrears should be denied a Hajj and umrah visa.

Zakat cannot go into the general fund, but of the eight categories of distribution proscribed in the Koran, five would be considered charity; the remaining could be considered as investment in people.

One, riqab, securing the freedom of slaves, can be interpreted metaphorically as emancipating the people. Thus zakat funds have traditionally been used for religious schools; I see no reason why that cannot be broadened to other schools as with building laboratories and libraries.

Providing job opportunities is also a form of emancipation. The prophet used to build bazaars so traders would have a place to conduct commerce, thus providing employment opportunities as well as service and merchandise for the community.

Our pasar minggu (farmers’ market) where most of the traders are Malays lack even the basic amenities. Provide water supply, and that would greatly enhance their hygienic practices, to the benefit of their customers. With power those hawkers could refrigerate their perishables, thus enhancing food safety and reducing wastage. Why not use zakat to build these clean, well-equipped bazaars as with the prophet’s time? The area outside the Kaaba was the scene of intense commercial activity during his time. It still is, especially during the pilgrimage season, providing precedence in combining pious pursuits with economic ones.

Zakat could be combined with the “one village, one industry” initiative by funding these enterprises, thus providing jobs for the villagers. That would be more dignified than simply giving the poor handouts.

The building of public infrastructures as marketplaces and funding village enterprises can be viewed as freeing our people from enslavement, the enslavement of having no jobs, no income, and most of all, no hope.

Zakat could also be used to build hostels on mosque properties. Besides being a source of revenue, it would also fulfill zakat’s mandate of helping travelers (Ibnus sabil). Such hostels would be especially useful for villagers and others not comfortable with commercial hotels.

The other legitimate use of zakat is for fisabillillah, jihad in the ways of Allah. That too is a broad mandate. Creatively interpreted, those fighting corruption, injustices, and poverty could be said to be engaging in fisabillillah and thus deserving zakat support.

Showcasing Zakat Versus Income Tax

Having income tax side by side with zakat would be an excellent field experiment to compare the two systems. There are definite philosophical and practical differences between the two.

Zakat meets the economist’s criteria of an efficient tax system. Its flat rate means the redistribution aspect is minimal, very unlike the “progressive” income tax. By casting the net wide and shallow instead of narrow and deep as with income tax, zakat maximizes revenue. Zakat’s simplicity, low rate and minimal deductions discourage cheating by underestimating asset value. It also spares the need for expensive tax accountants and attorneys.

In terms of equity, consider that half of Americans do not pay any income tax; the figure is even lower in Malaysia. With zakat, the figure should be considerably higher. After all you are liable for zakat if your personal asset exceeds nisab, the value of three ounces of gold. You have to be destitute to avoid zakat.

As for equity, at present sultans do not pay any income tax; with zakat they have to. I wonder how much zakat that dentist-cum-politician pays for his mega mansion or Rosmah for her ring! With our secular income tax they owe nothing. That is the best demonstration of the justness of Islam.

Zakat is incumbent only upon individuals, not corporations; there is no provision for that in the Koran and hadith. That is not surprising as the concept of the corporation is recent. I do not see why corporations should not be subjected to zakat. However, considerable intellectual work needs to be done with respect to valuation of assets, in particular “goodwill” and intellectual properties.

Adopting zakat would give so many opportunities to effect good, reason enough for our leaders to focus on it rather than on hudud. Obsession with hudud only distracts them from facing the real challenges facing our people.

Malaysia in the Era of Globalization #84

Sunday, October 2nd, 2011

Chapter 10: Freedom, Justice, and the Law

Society and Individuals

Society and individual may be the two sides of the same coin; nonetheless our attitude or more importantly the attitude of those in power as to which side to be viewed first, involves more than just a simple toss of the coin. The difference between a totalitarian state versus a civil one is that with the former, the individual serves the state; in a civilized society, the state is there for the citizens. This seminal distinction makes all the difference.

The purported supremacy of Asian values that place a premium on societal goals over the dignity of the individual is in reality at best nothing more than a benign manifestation of authoritarian tendencies. It is no surprise that such societies are prone to militaristic and dictatorial tendencies, as demonstrated by Communist China and the Japan of World War II.

Indeed one can guess accurately the state of a nation by seeing how it treats its individual members, especially its intelligentsia and talented members. I see daily reminders of this in America. Visit any prestigious university in the West and you will find brilliant scientists and scholars from the Third World. The more backward the country, the more its citizens are represented. India and China are both backward, but America has an extraordinary number of their talented scholars and scientists.

Many of the “hi-tech” startups in Silicon Valley are the brainchild of Chinese and Indians entrepreneurs. The Egyptian Nobel Prize winner in Chemistry (1999), Caltech’s Dr. Ahmad Zewail, did his formative research in America. The Egyptians recognized him only after he made a name for himself. The Pakistani-born 1979 Nobel laureate in physics, Abdus Salaam, too did his pioneering work in the West.

Visit any leading American medical center and you will see many luminaries from such countries as Pakistan, Ecuador, and Ethiopia. While every year America routinely grabs the lion share of Nobel prizes, what is not commonly recognized is that many of these geniuses are foreign born. These talented individuals had to leave their native land to maximize their potential.

When I see how Indonesia treats its gifted writers like Pramoedya Ananta Toer, I am saddened not so much for him but for the Indonesians. Here is a talented writer, God’s gift to the Indonesians, and their leaders treat him like a criminal. They fail to respect much less appreciate his precious talent. While eminent American universities like Cornell and Cal Berkeley laud him, back in Indonesia his books are banned. It is instructive that he was nominated by his Malaysian admirers for the prestigious Maysaysay award which he won in1965. Meanwhile back in Indonesia the military rulers were debating whether he should be allowed to leave for Manila to receive the award.

Reading his autobiography, Nyanyi Sunyi Se Orang Bisu (The Mute’s Soliloquy), I am struck at how callous and cruel the authorities are towards their citizens. Pramoedya’s fate is in stark contrast to how writers are treated in America. For one, their intellectual property is well protected and they get generous royalty payments. Two, they are honored and rewarded with offers from universities to be their writer-in-residence or such similar program. In Indonesia however, Pramoedya was tortured, his private property and invaluable manuscripts confiscated, and he was banished to a remote island.

What Indonesia is saying to its citizens especially its talented ones is this: We do not respect your skills and ability; and if you become too smart, we will show you who is smarter!

The genius of modern Western civilization is its fine balancing between respecting individual freedom and rights on one hand, and the needs of society on the other. A salient feature of Western democracy is the freedom it affords individuals to pursue and fully develop their talent and abilities. Only modern democratic societies have successfully resolved the continuing dilemma of reconciling the needs of the individual with the claims of society. Totalitarian societies that prize the supremacy of society (or more correctly, the needs of those in power) have repeatedly proven to be disastrous failures. The abject failure of present day Islamic societies is precisely because their rulers have subjugated individual freedoms to the needs of society and its leaders. They have confused obedience to the state and its leaders as being the same thing as obeying God. The one common feature of many Third World countries today is their callous disregard for the dignity of their citizens.

The Golden Age of Islam was attributable to the remarkable freedom afforded to individuals. Such freedom resulted in the intellectual fervent that produced such giants as Imam Ghazali, Ibn Rashid, and Ibn Sinne. Historians now recognize the pivotal contributions of these early Muslim thinkers to the later European Renaissance.

To the extent that modern Islamic reformists would like to bring Islam back to those pristine values of the past, especially the respect and dignity for the individual, I am all for it. But present day Islamic “reformists,” especially those in the Third World as represented by PAS in Malaysia and the Taliban in Afghanistan, would have their citizens be subjugated by the state. They have the supreme arrogance to believe that their state is divinely sanctioned, and thus holds supremacy over the individual. These leaders ought to be reminded that Islam thrives only in an atmosphere of freedom.

An All-Knowing God (Al-Aleem) has also bestowed upon each person an intellect, akal, and with it the capacity to think and reason. This divine gift is unique only to humans; it enables us to decide between good and bad, right and wrong, and whether to believe or not to believe. With this attribute man is also capable of creative knowledge. In short, man is not a robot. This human potential would be stunted if we do not have freedom in the broadest sense of the word. Or as Mahmoud Taha put it, “free from all the dehumanizing influences of poverty, ignorance, and fear.” Today only in Western democracies have these fears been alleviated, and thus only in a democratic system does individuals have the potential to reach their full promise.

Left alone people will do what is best for themselves and their families. The role of the state is to encourage, not thwart, this natural instinct. When individuals progress, so would society.

Next: Personal Liberty in Malaysia