Chapter11: Embracing Free Enterprise

Let there be amongst you traffic and trade by mutual goodwill.
—Surah An-Nisaa (The Women) (4:29)

When you are lost, goes an old Malay saying, revert to the source. That seems to be Malaysia’s new economic strategy following the Asian economic crisis of 1997. Buffeted by the turmoil of globalization and open markets, Malaysians yearn for the simpler days of fixed exchange rates and controlled commerce. Some even suggest regressing to the old days of bartering! But as in the jungle, the path back is often overgrown, and one could just as easily get lost in retreating. Malaysia is better off preparing for the new realities of open markets and globalization, instead of retreating to some imagined good old days of yore.

With the collapse of communism free enterprise remains the only viable economic system. It is successful because it has proven to bring the greatest prosperity to the largest number of people. Many have sought a “third way,” a mid course or a bridging between free enterprise and state planning. Alas, there is no such alternative.

Free enterprise or capitalism, in the traditional definition, is an economic system based on the private ownership of the “means of production” and in which profits can be acquired through investment of capital and employment of labor. This is in contrast to socialism and communism where the state owns the “means of production,” and also your labor. In free enterprise there is private ownership of properties, while in socialism and communism, everything belongs to the state. In Islam of course everything belongs to Allah, man is only His trustee (“vice regent”) on earth. Only God can revoke this trust (presumably upon one’s death). Nowhere in the Koran is it stated that Allah has substituted the state for humans for the trusteeship of the earth. In this regard, capitalism rather than socialism or communism is closer to Islam. Besides, the atheism of communism is the very antithesis of Islam.

With capitalism you are rewarded for your efforts and ingenuity; with socialism, the all-powerful state decides how much you deserve or should get. To use a biblical phraseology, with free enterprise you reap what you sow; with communism, to each his due or according to his needs. To revert to my familiar bovine analogy, imagine you have two cows. With socialism, in the spirit of equality, you are required to give one to your neighbor; in communism, you must give both to the state and it may in turn give you some milk in return; with capitalism, you sell one cow and buy a bull. (If you are a real entrepreneur you simply let your cows loose amongst your neighbor’s bull!) Real world experience proves that over time the capitalistic system produces the greatest number of cows.

The failures of communism and socialism are now self-evident. The old defunct Soviet empire is only the most dramatic example. But remnants of that ideology are still alive and kicking to inflict their damage on the economies of many countries, Malaysia included. Present-day stagnant India with its ubiquitous “Permit Raj” is an ever-ready sorry reminder of the dangers of central planning and big government.

Malaysia, despite its commitment to free enterprise and open markets, is still very much enamored with elaborate central planning and fancy Five Year Plans. My own minor involvement in the late 1970’s with Malaysia’s never ending Five Year Plans is instructive. I see little evidence of improvement since then. It was towards the end of the Fourth (or was it the Fifth?) Malaysia Plan. I was instructed to develop plans for the next five years, and countless meetings were held. Only months before we were busy with the midterm review of the current plan. There were still many projects that were either behind schedule or had not been implemented. Prior to that, we were engaged in yet another series of equally intensive reviews of uncompleted projects of the previous plans. We were indeed heavy into planning. In fact I could keep myself busy just attending these multitude of meetings! Many civil servants spend their entire time doing just that. Alas, planning is one thing, executing is another, as I would soon discover.

I had this simple idea that instead of concocting grandiose new schemes that would never see the light of day, I would review all previous plans, starting with the very first one twenty years earlier. To my surprise those plans were all well thought out, practical, and sensible. My predecessors had obviously taken their responsibilities seriously and put much thought into their submissions. The only problem was, few of those sound ideas had been implemented. And the fewer still that had been completed were useless or inoperative because conditions had changed dramatically. For example, by the time the new operating suites were completed they were already severely stressed from heavy usage because of the long delay between planning and completion.

So instead of dreaming of glamorous new projects, I merely updated the old ones. As for the required all-important “mission statement,” I stated simply that my objective was to complete all the projects of previous plans. Direct and truthful! After factoring for expanded capacity and inflation, I arrived at the new estimates with no difficulty. My immediate superior was suitably impressed when I submitted my proposal way ahead of schedule.

The only problem was, when the minister reviewed my submission, he was not amused. First, I did not have any grandiose proposals, and second, so many previous projects had not been implemented. While he understood my point, nonetheless he insisted that I come up with a new and better plan. He was not interested to know why those previous projects were not completed. They were his predecessor’s responsibility, not his!

Fortunately for me, I too had my own personal five-year plan, for soon afterwards I resigned from government service. And mine was fully implemented and on time.

Today (2002) Malaysia is embarking on its Eighth Five Year Plan. I can imagine all those bureaucrats spending countless hours in meetings with their Powerpoint presentations (if they are computer savvy, that is) on their various projects, complete with detailed dates of implementations, costs, and other minutiae. When one sits at one of these meetings one is suitably impressed. That is, until you actually see those projects at the ground level. Then one realizes that all those wonderful plans are just that—simply plans.

My experience with top-down bureaucracy of central planning was equally dismal. I was in charge of the postgraduate educational program at the Johor Baru hospital and had ordered much-needed books and journals for the library. Easy enough, except when it came time to get the funds I was told to submit the request to the Ministry of Health headquarters. I did but was told that books could only be ordered once a year and that somebody from headquarters would be visiting me soon to discuss the purchase order.

That bureaucrat did finally show up and the first thing he asked was whether I had competitive bids! I had difficulty convincing him that buying medical books and journals was not like buying hospital uniforms where one can comparison-shop and accept the lowest bidder. I suggested that the ministry authorizes a sum of money annually for books and journals, and let the hospital do its own purchasing. He was not persuaded but instead tried to impress me with his vast knowledge of the civil service code and the relevant circulars.

A year later the books and journals had yet to appear. It would not surprise me that they had not even been ordered, awaiting no doubt approval from Treasury or perhaps the minister himself. All for a measly few thousand ringgit! Meanwhile those young doctors were without their reference books and journals.

When I pointed this out to a more senior ministry official, his reply was that central planning was a way to cut out corruption. Had they given me the cash, I might have spent it on frivolities or worse, absconded with it. It is pathetic that they would trust me with the lives of the citizens but not a few lousy ringgit. I shudder to think of the bureaucratic maze my purchase order went through.

Extrapolate my experience and one need not wonder why Malaysia is a mess. In response to the economic slowdown, the government in 2001 allocated a multi-billion ringgit fiscal stimulus package. A year later the funds were still stuck at Treasury. Whatever economic impact the planners had imagined in drawing up those wonderful plans, all came to naught. The Prime Minister blamed the Public Works minister; he in turn blamed Treasury; and Treasury of course blamed the contractors. Reminds me of the “blame the dumb cows” story!

I have now come to the conclusion that all these elaborate central planning are nothing more than massive public works projects to keep the glut of civil servants occupied. That those plans occasionally benefited the citizens is merely coincidental!

If that were the only consequence of central planning, it would be relatively benign. The more sinister aspect of central planning is that it would lead to the gradual erosion of the rights and liberty of citizens.

These planners may be well intentioned initially, but all too often when they promise a rosy world, the reality is the reverse. People’s lives would be planned to satisfy the needs and desires of the planners. Left unchecked, these planners become control freaks. This was the prescient observation of the Austrian economist von Hayek in his classic book, The Road to Serfdom. It is significant that the book was first published at the end of World War II when the world was enamored with central planning and Maynard Keynes, a brilliant and eloquent proponent of government intervention, was the towering intellect in economics.

Next: Free Enterprise As An Islamic Tradition

Chapter 10: Freedom, Justice, and the Law

The Judiciary: Justice in Jeopardy

Not only must there be respect for the rule of law, but the laws themselves must be just. Those administering the law too must be just and be seen to be just.

The Malaysian judiciary began on a very high note with judges held in the highest esteem. Tun Suffian set the tone not only with his exemplary personal example but also the depth of his legal judgment and scholarly analysis. The low point of the Malaysian judiciary occurred when the King, acting on the advice of the prime minister, suspended the chief justice and a few of his associates. Sadly from there the judiciary seemed to breach new lows every so often. A retiring senior appellate judge recently publicly confessed his shame for having been a member of that august body. He bluntly blurted about Malaysian litigants being confident of winning even “hopeless cases” as long as they were filed in “certain courts.” A more damaging indictment would be hard to find.

This sorry state of affairs received widespread international attention with the released of a scathing report jointly issued by, among others, the International Bar Association and the International Commission of Jurists. Justice in Jeopardy: Malaysia 2000, asserts, “…well-founded grounds for concern as to the proper administration of justice…in cases which are of particular interest, for whatever reason, to the government.”

The commission in particular was concerned of the manner judges were selected for high profile cases, especially those with political undertones.

Many of the issues raised by those distinguished jurists are familiar not only to lawyers but also ordinary citizens. For example, the commission is critical of the merging of the legal and judicial services that resulted in the rotating door policy between judges and prosecutors. As these officers are answerable to the same superior, it does not encourage the development of distinct and independent services.

The commission resurrects many of the same issues I raised in my earlier book, among them, the insularity and limited experience of Malaysian jurists. As the commission also noted, nearly three quarters of them are promoted from within; there is little or no infusion of fresh talent from the outside. Few of the judges have experience outside of government. Part of the reason is that the pay is not competitive to attract talented private practitioners. Further, new recruits of esteemed lawyers are treated as if they are junior appointees. They are placed on probation for a year or two, and often start as lowly magistrates. That is certainly no way to attract legal luminaries from the outside. In contrast, American judges count among their peer brilliant legal scholars, successful private practitioners, and accomplished statesmen. Malaysia should do likewise and have an infusion of top talent directly into the upper levels of the judiciary.

The way Malaysia selects its senior judges stands in stark contrast with that of Singapore. As related in his memoir, when Prime Minister Lee Kuan Yew was looking for his new chief justice, he instituted a thorough and exhausting winnowing process. He polled successful private practitioners, respected academics, and senior judges for their recommendations. After short-listing the candidates he interviewed each one of them. It is no surprise then that Singapore’s present Chief Justice, Yong Pung How, commands such great respect not only at home but also abroad. No lawyer would dare make flippant or flamboyant remarks about his performance or person. His resume is formidable: the product of the world’s best law schools (Cambridge and Harvard), extensive business experience (chief executive of a major bank), and successful private practice.

No Malaysian judge comes even close to this man in terms of the breadth of experience or sterling academic qualifications. Malaysia does not lack for talent, but the system does not allow them to emerge. Malaysian leaders do not consider senior judicial or other public appointments merit such careful scrutiny.

A telling indicator of the caliber of Malaysia’s top public officials is demonstrated by the silly squabble between Law Minister Rais Yatim and the then Chief Justice Eusoff Chin that took part in mid 2000.

The controversy erupted over the judge’s choice of an overseas holiday companion, a certain lawyer who had appeared before him on a high profile case. When the news first broke out, the judge vehemently denied any impropriety, claiming that he had merely “accidentally” bumped into the lawyer on his trip. But when investigative reporting by Malaysiakini revealed that they had shared the same flight and were together for an extended period during their vacation, the minister felt compelled to publicly chastise the judge.

That a junior minister (and a rookie one at that) could openly humiliate the Chief Justice (a man considerably higher in the government scheme of things) leads me to a disturbing thought: Would a more powerful minister hesitate in letting a less senior judge know of his (minister’s) displeasure?

Rais Yatim, in his previous incarnation as deputy leader of the opposition Semangat Party (it later merged into UMNO, which was how he ended up in the cabinet) was highly critical of the unchecked powers of the executive. Such overzealous dominance, he noted in his doctoral dissertation, threatens the independence and integrity of the judiciary. Wise observation! Alas, that was then. Once in the cabinet he sings a decidedly different tune, one more pleasing to his master’s ears. I would have more respect for Rais had he, before accepting his cabinet position, tried to convince Mahathir of his views. A belief so readily discarded is no conviction at all.

While these pathetic senior public figures spat in public, the more damning criticism leveled in Justice in Jeopardy was conveniently ignored. Indeed both the law minister and chief justice confessed in not having read it as they had not as yet received an official copy, even though the entire document was readily available on the Web. I publicly suggested that the minister should pay attention to the report instead of the judge’s poor choice of holiday companion. That would not have generated as much publicity for Rais, but it would do him and the nation immense good.

In the end what made the government act were the concerns of foreign investors. They were getting increasingly uneasy with the way justice was dispensed, especially in regards to “mega awards” and lawyers “shopping around” for sympathetic judges. Such practices clearly undermine the integrity of the entire system. The Political and Economic Risk Consultancy (PERC) ranked the Malaysian judiciary behind that of South Korea and the Philippines. Increasingly, investors (foreign and local) factor in their faith in the country’s justice system as a major consideration in deciding where to invest their money.

In February 2002, the giant California Public Employees Retirement System (CalPERS) stunned many by declaring its withdrawal from many emerging markets including Malaysia. Although Malaysian officials tried to dismiss or minimize the significance of the decision, there was no question that it was a tremendous blow to Malaysia. CalPERS’s had suffered tremendous loss in those markets. For the past five years, its average annual returns for Malaysia was a horrifying – 18.3 percent. CalPERS concluded that it is not enough to analyze the performances of companies and markets; it must also look at the supporting political and governmental structures. In essence, it concluded that you could not have a “good” company in a “bad” country. Malaysia scored poorly in such areas as political stability, financial transparency, free press, and most importantly in the context of the present discussion, an independent judiciary.

Apart from being the biggest fund manager, CalPERS is also widely regarded as a trendsetter. Malaysia ignores CalPERS observations at its own peril.

In response to Justice in Jeopardy, the government set up a Human Rights Commission (Suhakam), chaired by a former deputy prime minister, Musa Hitam. Thus far Suhakam has reviewed cases of alleged police brutality as well as actively championing citizens’ rights. To me its pronouncements are bland and mild (for example, Malaysians have a right to peaceful assembly). Nonetheless it is a sad reflection of how low human rights and civil liberties have been degraded in Malaysia that such obvious statements were widely lauded and welcomed.

The year 2001 saw the appointment of a new chief justice, Dzaiddin Abdullah. His first order of business was to immediately admit the rotten state of the judiciary, a rare public admission by a senior official, and he then went about to clean up the mess. Thus far his moves have been widely applauded by both the public and members of the Bar. Even Rais Yatim saw fit to claim credit for the judge’s appointment.

Dzainuddin’s elevation was like a refreshing breeze that many would hope will remove the stench from the judiciary.

Through globalization, Malaysians are now very much aware of events occurring elsewhere. Just as Malaysians demand a world standard of education and medical care, so too they now want the same liberties enjoyed by other civilized citizens. Malaysians are not comforted by the fact that they have more freedom than the Indonesians or Iraqis.

Having seen the best they rightly demand the same. The Malaysian system of justice must therefore accept the prevailing international norms. There is no longer a “local” standard. Police brutality and other infringements on basic human liberties are as unacceptable in Malaysia as it is in America.

The negative consequences of the 9/11 tragedies are, among others, intrusive legislations introduced in America to meet this new national challenge. The Patriot Act of 2001 for example, provides for detention of non-citizens without trial. Such moves by the Americans emboldened Mahathir to wield the ISA and other restrictive laws even more brazenly, all the while smugly asserting that the Americans are finally wising up to Malaysian ways. Nothing could be further from the truth.

In their conceit Malaysian leaders are ignoring some essential differences. For one, the new restrictive law had a very rough grilling in Congress. It was also widely debated by the populace. Further, such rules apply only to non-citizens and have sunset provisions, meaning they will be intensively reviewed and will expire in three years unless specifically renewed. These are significant differences that Malaysian leaders do not apparently appreciate or choose to ignore.

If the system of justice in Malaysia were to meet the prevailing world’s norms, it would surely earn the respect of the citizens and the international community. It would also be good for business. Surely that is a worthy goal.

Malaysia spares no effort in trying to attract foreign investors and businesses. Fixing the badly tarnished justice system would go along way to assure these foreigners. In the next chapter I will go into greater detail on how Malaysia could make herself more attractive to investors, local and foreign, by enthusiastically embracing free enterprise.

Next: Chpater11: Embracing Free Enterprise

[The serialization of my Malaysia in the Era of Globalization resumes next week.]

Malaysians Abroad Should Not Vote
M. Bakri Musa
www.bakrimusa.com

Malaysians abroad are misguided and plain wrong in agitating for exercising their right to vote in Malaysian elections.

I can the see the validity for students, diplomats and others on temporary assignment abroad demanding such rights, but then they already have them. For others, especially those who have acquired permanent resident status elsewhere, their clamor for retaining their right to vote in Malaysian elections is misplaced for at least three major reasons.

The first and most important is that since they do not live in Malaysia, they would not have to bear the burden of the consequences of their voting decision. Second, those Malaysians are essentially seeking representation without taxation; that is presumptuous. Third, since they had sought permanent residency status abroad, their focus should now be to prove to their new host country that they are deserving of such a status. Meaning, they should focus their attention, indeed loyalty, to their new adopted land.

My last reason is not major but merely financial. There are considerable added costs to have Malaysians abroad vote in Malaysian elections; I would rather have the government spend that money and resources in Malaysia.

Elections Have Consequences

For an action to be meaningful its consequence must affect the participants, otherwise the exercise is merely academic or worse, a game. It may be a fun game for those abroad to vote in Malaysian elections, but for the locals who have to live with the consequences, it would not be so. In short, Malaysians abroad participating in Malaysian elections are engaged in a fraudulent act besides muddying the waters for the “natives” who have to live with the results.

It is also the height of presumptuousness for those residing abroad to seek political representation but at the same time dispensing with paying their share of the costs, meaning, Malaysian taxes. Americans abroad have a right to vote not only because of the fact that they are citizens, but also because they are taxed on their worldwide income. An American may earn her entire income in Malaysia and in ringgit, nonetheless she still has to pay her share of income tax to Uncle Sam as if she had earned that income stateside. So I can see her demanding her right to vote and that the American embassy provides her the necessary facility so she can readily exercise that right.

Malaysians abroad in contrast do not pay any Malaysian income tax, unless they have Malaysian sources of income, and those Malaysians already retain their right to vote. If the rallying cry of those original New England “Tea Party” colonists back in the 17th Century was “No taxation without representation,” today we have Malaysians abroad who pay no Malaysian tax yet perversely are demanding their right for representation without taxation. Absurd if not arrogant!

The Election Commission’s retort to them should be, paraphrasing the famous words of John Hampden uttered at the height of the English Civil War, what a Malaysian abroad has no right to demand, their home government has a right to refuse.

Malaysians abroad on permanent residency visas should not seek or be given the right to vote in Malaysian elections because they have essentially decided that there is no hope for them in Malaysia. If they were to harbor any sliver of hope for change, then they would have stayed behind and agitated for change from there, where their efforts would have the potential of having the greatest impact.

Besides, having made the emotionally wrenching decision to emigrate, their main focus now should be to adjust to that decision and make the best of it. Thus they should endeavor to plant roots in their new adopted community, be an active and contributing member, and not be bothered with matters (especially political ones) they left behind.

If they should be clamoring for any voting rights, it should be for the right to vote in the affairs of their new community, if for no other practical reason than that those decisions will now directly impact them.

If after adjusting well in their new adopted community, these émigré Malaysians still retain a reservoir of goodwill and gratitude for their homeland and wish to contribute, then there are other more productive avenues to do so than to agitate for the right to vote in Malaysian elections.

Eradicating the “Temporary Abode” Mentality

There is something irritating when I see Malaysians holding green cards or otherwise having permanent resident status being more concerned with Malaysian affairs then they are with those of their adopted homeland. If as a non-native in a new land I feel that way, imagine what the real natives would feel. In America I see frequent backlashes against Mexican-Americans for example, who are more concerned with affairs south of the border than they are with matters American.

A green card (or any permanent resident status) is a privilege; literally millions in the world would give anything to secure one. Having secured one and then to treat it so cavalierly is being disrespectful to the grantor state. Worse, that is the height of ingratitude. In fact in some jurisdictions, any political involvement with affairs back in the “old country” would be grounds for rescinding that permanent resident status.

Permanent resident status is more than a long-term permit to work; it is a statement of your intent to be a permanent resident of that country, as the terminology of the document implies. In many countries permanent residents are granted nearly as full a privilege as citizens. Thus it behooves the holders of such visas to exercise their privileges in such a way as to demonstrate to the host country that they value and thus are deserving of such a status.

If I were a native Singaporean, for example, I would not be too happy to see the republic’s permanent resident visa holders more interested in Malaysian rather than the island’s elections. Indeed there is now a palpable backlash among the republic’s citizens to these new permanent residents who treat the affluent island merely as a place to earn a good income and nothing more.

Malaysians would not be too enthralled either if foreigners granted Malaysian permanent residency status were to preoccupy themselves with matters in their former native land while ignoring local affairs.

A common complaint among Malays is that too many non-Malays treat their Malaysian citizenship merely as a stepping stone for them or their children to emigrate to the West. Thus Malays see the lack of enthusiasm by non-Malays to learning our national language as a manifestation of this “temporary abode” mentality. So when these Malaysians emigrate and then agitate to have the right to vote in Malaysian elections, they are reverting to their old stereotypical “temporary abode” behavior, albeit not in Malaysia this time but in their new home country.

Just to be clear, I am directing my comments not to those Malaysians on temporary assignment abroad as students, civil servants and company employees. For students especially, I would encourage and give them every facility to vote. Doing so would be the best way to get them engaged in the affairs of their homeland. God knows, if they were back in Malaysia their political activities would be severely circumscribed. At least abroad they would be free to partake in full in the political affairs of Malaysia.

If the Malaysian government were to give in and pander to those abroad (parties in power tend to do that!) then I suggest that those voters be made to pay for the full costs of making the necessary accommodations. In my estimation, a fee of US$100.00 per voter would be appropriate, at least in America. That fee would of course be waived for those with proof of payment of their Malaysian income tax in the preceding year.

Impose that fee and then see how many abroad still remain “passionate” about Malaysian affairs to demand the right to vote in its elections. Now if those expatriate Malaysians were as passionate in seeking amendments to the Income Tax Act to making their global income subject to Malaysian taxes as they are in clamoring for their rights to vote in Malaysian elections, then I would salute them, but I would still not support it simply because of the costs it would impose on me.

The Malaysian Election Commission faces a host of monumental problems not least of which would be to clean up the electoral roll and streamline the postal voting process for those already in Malaysia, as with the police and military personnel. The clamor of Malaysians abroad seeking the right to vote is so far down the list that I can hardly see it. Further, I see little merit in representation without taxation.

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

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

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
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.

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

: Chapter 10: Freedom, Justice, and the Law

No person is perfect enough to be entrusted with the liberty and dignity of others.
—Mahmoud Mohamed Taha (1909-1985)
Sudanese Reformist, executed by his country’s military rulers.

I was visiting Malaysia after being away for many years. It was right after the race riot of 1969. The streets were still deserted, and I was driving with my father when we came upon a stop sign at an intersection. I duly stopped, looked around, and finding no oncoming traffic, proceeded.

My father asked why I stopped, and I responded that there was a stop sign. Startled by the unexpected question, I looked back to find him in a pensive mood, his face tilted, and his eyes looking far into the distance. After a long pause, he matter-of-factly murmured, “That is why the West is so advanced. People there obey the law even when no one is watching!”

Intuitively he had concluded that since my stopping at the stop sign was so natural, it must have been conditioned by my years of living abroad. He remembered only too well my driving habits at home a decade earlier!

While I was studying abroad, my father always encouraged me to venture beyond the campus and be involved in and observant of the community at large. Canada, he wisely observed, must be very advanced to be able to offer scholarships to foreigners, and he advised me to use the opportunity to learn everything about the country, and not just come home with a degree. Thus my summers were spent working at such places as a dairy farm and a summer resort, working and interacting with ordinary Canadians. I would write home frequently about my observations.

I described how efficient the modern dairy farms were, and of cows with humongous udders pouring out literally gallons of milk daily. Once I related how the farmer had unhesitatingly discarded a bucket of fresh milk, as he did not know whether it had been contaminated. That potentially spoilt milk, he noted, would be mixed with others, and thousands of customers would be sick. Besides, the reputation of his outfit could not be compromised or ruined for the sake of a few dollars worth of milk.

On another occasion, after a bus trip, I wrote of my wonderment at Canadian bus drivers; how professional and proud they were about their jobs. Indeed they were dressed like pilots, with their crisp light blue long-sleeved shirts neatly tucked inside their dark blue pants, complete with a bow tie and a captain’s cap. That bus driver had taken us through the neighborhood where he lived and proudly showed us, the tourists, his home. It was a neat, modest track bungalow in a clean pleasant suburb. I could not help but compare him with his Malaysian counterparts who for the most part had their shirts flying loosely untucked, with untied shoes or slippers, and generally looking disheveled.

Through such regular commentaries my father knew firsthand about life in Canada. He had the right impression that the West was indeed advanced and wondered why or how it got that way while countries like Malaysia were still struggling.

My father was on to something profound when he observed that obeying the law when no one is watching is a key ingredient to the West’s success. To many observers, a respect for the rule of law is a prerequisite for progress. A modern society is ruled by law, and not by men. Progress cannot take place when there is callous disregard for the law.

This respect for the law must be shown not only by ordinary citizens but also more importantly, the leaders. For when leaders abuse their privileges and flout the law, then there is little hope for the country. This abuse can come in many forms, from outright disregard of the law to more subtle forms as in selective prosecution and uneven applications of the law. When leaders and the elite do not respect the law, it sends a clear message to the masses to do likewise.

Similarly all laws must be respected, even the seemingly minor ones. The contemporary American political scientist James Q. Wilson first made the astute observation that when we ignore violations of minor laws, this would later encourage the breach of more serious ones. Law enforcement agencies are now familiar with the “broken window syndrome,” that is, when we ignore minor vandalisms like broken windows, we encourage others to commit even greater crimes, until the whole building is completely wrecked or burnt down by arson. New York police successfully reduced the rate of major crimes by first cracking down on such seemingly innocuous ones as loitering, jay walking, and littering. When ordinary citizens see that such minor laws are being strictly enforced, they rightly assume that other more serious infractions would also be vigorously pursued.

Going back to my father, I should have given him an update on my driving habits now that I have lived in California for a while. Californians are among the worst drivers. They consider a stop sign only a suggestion; and a yellow traffic light a signal to step on the gas!

Apart from respect for the law, another feature of the West is the premium it places on individual and personal liberty. Americans do not appreciate this freedom as it is taken for granted. They are sensitized only when that freedom is threatened or breached. Notice the current uproar over the president’s proposal to detain potential terrorists without due process in response to the 9/11 tragedies. Americans become very much aware of their cherished freedom when they are abroad.

Once on a flight to Malaysia I came upon an article in a regional publication that was supportive of Malaysia but contained some mild but valid criticisms of the leadership. I related that article to my Malaysian friend, and he too was interested to read it. I rushed to the nearest bookstore to get a copy of the magazine. (Having been away from Malaysia for a long time I have not developed the habit of swiping the airline’s copy!) Imagine my horror when I could not find the article; the pages had been neatly excised! Some bureaucrats in the censors’ office had the audacity to decide what I can and cannot read. How insulting! I felt violated.

This blatant disregard for the rights and dignity of the individual is pervasive in the Third World. These poor societies fail to appreciate that in the final analysis it is individuals who effect changes, and thus progress. Western societies are more progressive because they place a premium on the individual. Eastern societies generally submerge the individual to the needs of the larger society. They emphasize society’s goals and stability over that of the individual, as encapsulated by the Japanese saying: the nail that sticks out gets hammered. At least that is the perceived wisdom.

I challenge that. Consider what the Sudanese reformist Ustaz Mahmoud Taha wrote in 1963, “Every individual is, authentically, an end in himself. He is not means to any other end. He – even if he is an imbecile – is a “God” in the making and must be given the full opportunity to develop as such. Liberty is the prerequisite need. Man must be free from all dehumanizing influences – poverty, ignorance, and fear.”

Fifteen years earlier, the United Nations, using far less elegant prose, said essentially the same thing in its Universal Declaration of Human Rights. In its preamble the document reaffirms the inherent dignity and the equal and inalienable rights of all humans as the foundation of freedom, justice, and peace. The document’s first article could easily have been taken from the Koran when it declares that all human beings are born free, with equal dignity and rights, and are endowed with reason and conscience.

Many outside the West would challenge the universality of this UN Declaration, especially its statement reaffirming the primacy of the individual. But as the Islamic scholar the late Fazlur Rahman wrote, “Whether ultimately it is the individual that is significant and society merely the necessary instrument for his creation or vice versa is academic, for individual and society appear to be correlates. There is no such thing as a societiless individual.”

Next: Society and Individuals

[Note: The serialization of my Malaysia in the Era of Globalization will resume next week.]

A Whiff of His Father’s Leadership
M. Bakri Musa (www.bakrimusa.com)

In announcing the repeal of the Internal Security Act and other repressive laws, Prime Minister Najib Razak secures for himself an enshrined spot in Malaysian history.

Of the many thoughtful comments on Najib’s historic announcement, the one that struck at the heart of the issue was that by former Mufti of Perlis, Dr. Asri Zainul Abidin. He declared, “The ISA is an un-Islamic law. It infringes [upon] individual rights and can be easily misused by leaders, so repealing it was a very Islamic move.” Amen!

“Najib’s announcement,” Asri continued, “is more valuable than any bonus payment or salary increase because repealing the ISA means the restoration of human rights … which is more valuable than money.” That is putting things in their proper perspective.

I disagree however, with the Mufti’s characterization of Najib’s move as a “gift” to the people. When someone robs you of something and then returns it, that is no gift, merely restoring what is rightly yours. The ISA and other restrictive laws rob us of our precious possession, our freedom. That is Allah’s gift to us, as enshrined in the Koran. It is not for mere mortals, no matter how exalted their earthly positions, to tamper.

Nonetheless I do hear the Mufti. Good Muslims ought to be grateful for their blessings, however small. I want to be a good Muslim, and Najib’s announcement is a huge blessing, so I am very grateful. Alham dulillah! Praise be to Allah!

Missing the Islamic Visuals

Najib and his policymakers must have deliberated for some time. Perhaps it was not a coincidence that only a week earlier Najib’s younger brother, the head of a GLC bank, intimated the need for Malaysia to change lest it risks a Middle East type of upheaval. Significantly, he made it at the Malaysia-China Trade Investment Conference, but more on China shortly.

Pursuing the religious theme, I was surprised that Najib and his advisors did not choose an occasion with some Islamic symbolism to make his momentous announcement.

Not that there was anything wrong with choosing Malaysia Day. However, we just completed Ramadan only a fortnight ago. Surely Najib had decided then. Imagine if he had announced it on Hari Raya, which also coincided (more or less) with Merdeka Day. What better way to demonstrate and acknowledge the special blessings of Ramadan and live its spirit, as well as fulfill the aspirations of merdeka – freedom! Ramadan is after all about remembrance and return – remembrance on the origin of Islam and return to its essence, in Eboo Patel’s pithy phrase.

When Islam was revealed, it emancipated the Arabs from their Age of Jahiliyiah (ignorance); likewise, getting rid of the ISA would emancipate Malaysians, lifting us from our Age of Fear. As for the essence of Islam, our faith commands us to do good and forbid evil. Getting rid of ISA is getting rid of evil; it cannot be more Islamic than that!

Imagine the powerful symbolic impact globally had Najib made the announcement at the end of Ramadan, coming as it was only a few days before the tenth anniversary of the horrible 9-11, and with it the inevitable hysteria of Islamophobia. Imagine the good that would do to the cause as well as image of Islam! One Muslim country bravely discarding its antiquated repressive laws, and doing so not in response to mass demonstrations or civil disobediences but as a normal turn of events. The contrast with America’s renewed commitment to its Patriot Act and the Guantanamo detention camp could not be starker.

Speaking of image, had I been the administration’s public relations consultant, I would have arranged with the announcement a simultaneous release of some ISA prisoners. I would have alerted the news media so they could station their journalists and cameras outside the gate of Kamunting prison.

Imagine the stunning and symbolic visuals! While Najib was making his announcement, the prisoners would emerge one by one into the arms of their eagerly awaiting loved ones. If there were to be a mosque nearby, I would superimpose the call of Azzan to the visuals. I would also have the producer put on a split screen; on one side would be the Prime Minister making his solemn announcement; on the other, the prisoners with their families joyously celebrating their freedom, with the takbir (affirmation to the greatness of Allah) superimposed as the background soundtrack.

I cannot imagine a more powerful symbolism. Those tapes would also be great campaign materials!

The Najib Administration forks out tens of millions to foreign consultants in an effort to spruce up its image. Alas those “documentaries” that supposedly portrayed Malaysia in good light, as well as the many “interviews” Najib landed on the international media, all turned out to be unmitigated fiascos. Those “journalists” and “interviewers” were nothing more than hired hacks.

Yet when a rare and splendid opportunity arose as with the recent announcement, those highly paid public relations pros missed it! Perhaps that should not be a surprise. After all they are all foreigners and non-Muslims to boot; they could not possibly pick up on the Islamic nuances I alluded to earlier. However, their fumbling on the international stage where they are supposedly the experts cannot be readily excused. There is no justification for their lack of professionalism, if not downright unethical behaviors there.

As can be seen, a good policy is the best PR. Notice the favorable comments locally as well as in respected foreign media to Najib’s latest initiative, and it did not cost the government a ringgit to get them! Focus on crafting enlightened policies, and the favorable publicity would ensue. Even if you do not get any, a good policy is reward in itself. Your people will be grateful for it.

A Whiff Of His Father

In committing to repeal the ISA, Najib did something no other prime ministers before him had dared even to contemplate. And Najib had some mighty impressive predecessors. In so doing, Najib also demonstrated a whiff of his late father’s great leadership qualities.

The late Tun Razak did not hesitate to suspend parliament following the May 1969 race riots. Despite the howling protests at home and abroad, Razak was undeterred for he had a crucial job to do; restore peace and stability to a nation shocked by the horrors of that tragedy. And may Allah bless his soul, he accomplished his mission in short order.

To those who would belittle that achievement, let me remind them that the 1969 riot coincided with the flare ups of sectarian violence in Northern Ireland. While Malaysians have been enjoying peace for the past four decades, those folks in Northern Ireland are still busy settling their deadly scores.

To this day, Tun Razak remained unique in being the only leader in the world who grabbed power during a national emergency to pursue a much needed critical goal, and then willingly gave that power up once he completed his mission. No other leader could claim that. On the contrary, history is filled with leaders who had to be pushed or dragged out, or worse. Libya’s Gaddafi and Syria’s Assad are only the latest examples.

I am not concerned with how Najib arrived at his decision; I am focused only on the decision. There is no shortage of skeptics out there, and they are not without their reasons. After all Najib’s flip-flopping rivals that of his immediate predecessor.

Even if those skeptics were to be proven right later, there would be no turning back. Najib has clearly declared his niat (intention) to repeal the ISA. In Islam, niat is what counts. We declare our niat before we pray, fast, give zakat or undertake the Hajj. If Najib fails to live up to his Nawaitu, then he has to answer not only to his Maker on the Day of Judgment but also more practically, to his political makers – the voters – right here on earth and now, as in the next election.

Najib’s Nixon-in-China Moment

Najib’s declaration last Wednesday reminded me of Nixon’s pioneering 1972 trip to China. It took another seven years before America would send its first Ambassador to Beijing. Today, over 30 years later, we wondered why on earth it took America so long to recognize the obvious reality of this most populous nation. Regardless, America, China, and the world are now better for it.

Nixon basked on the glory of his China trip and went on to win a landslide for his second term. Alas that triumph proved short-lived, for he was soon forced out of his presidency in shame on matters unrelated to his China initiative. Nonetheless his trailblazing China moment retained its luster in an otherwise blemished legacy.

If Najib’s Malaysia Day niat proves to be just that and nothing more, well, like Nixon, at least he will have that as his legacy, and only that. However, if it proves to be ikhlas (sincere) and only his first step, with many more courageous moves ahead, then greatness awaits him, as well as Malaysia.